Cumings v. State

• Decision Date: 03 November 1885
• Docket Number: Case No. 1889
• Citation: Morris v. State, 65 Tex. 53 (Tex. 1885)
• Parties: MORRIS & CUMINGS ET. AL. v. STATE OF TEXAS EX. REL. N. GUESSETT ET. AL.
• Court: Texas Supreme Court

65 Tex. 53

MORRIS & CUMINGS ET. AL.

v.STATE OF TEXAS EX. REL. N. GUESSETT ET. AL.

Case No. 1889

Supreme Court of Texas.

Nov. 3, 1885.

APPEAL from Nueces. Tried below before the Hon. J. C. Russell.

This is the second appeal of this cause. For the action of this court on the former appeal, 62 Tex., 728.

The suit was commenced by an information in the nature of quo warranto filed by the county attorney at the relation of N. Gussett and others in the District Court of Nueces county, on the 30th of June, 1881, against appellants, requiring them to show by what authority they assumed to charge and collect tolls on freight passing through the ship channel connecting the waters of Corpus Christi and Aransas bays. The petition also prayed that defendants (who are appellants in this court) be restrained and enjoined from collecting toll on freight passing through the channel, and that their claim to the franchise and right be declared null and void.

The city of Corpus Christi was one of the original defendants or respondents in the court below. The city filed an answer disclaiming all right to collect the tolls, and asked that the suit be dismissed as to the city, which was done.

The other defendants, Morris & Cumings and the Central Wharf and Warehouse Company of Corpus Christi, the latter being a corporation chartered under the laws of the state of Texas, filed a general denial and a special answer, alleging a legislative grant to the city of Corpus Christi to construct the channel and to collect tolls for the use thereof.

A declaration in relation to (the) Corpus Christi Ship Channel, passed by the Constitutional Convention of the state of Texas, January 26, 1869, recognizing the grant and validating the bonds issued by the city thereunder, these defendants also set up in their answer, and proved a ratification and confirmation of the right of Morris & Cumings to collect the tolls on all freight passing through the channel by virtue of an act of the legislature passed May 22, 1873, entitled, “An Act to reincorporate the city of Corpus Christi,” and also another act passed on the 23d of May, 1873, entitled, “An Act in relation to the Corpus Christi Ship Channel,” and the ordinances passed by the mayor and board of aldermen of the city mentioned in the acts of the legislature, and another ordinance of the city passed May 20, 1874, by which the channel was declared completed, and was accepted by the city as having been constructed in compliance with the law and the contract made with Morris & Cumings.

These defendants also alleged that they were the legal and equitable owners and holders of all the bonds which had been issued by the city to D. S. Howard & Co., to the amount of five hundred thousand dollars, for the opening of the ship channel, except twenty-six of the bonds of $1000 each, which had been discharged, cancelled and surrendered to the city.

The cause was tried by the judge without the intervention of a jury. The defendants suggested the disqualification of the Hon. J. C. Russell, the presiding judge, to sit on the trial of this cause, and moved that he be recused; the suggestion and motion was overruled, to which ruling defendants excepted.

The defendants then moved for a change of venue, for reasons apparent in the record; this motion was overruled and defendants excepted.

The judge then proceeded to the trial of the cause, and rendered judgment for the state and relators, ousting respondents of their franchises and declaring them forfeited.

The judge filed his conclusions of fact and law separately, as follows, to-wit:

In accordance with the request of counsel for respondents, the court presents and files the following conclusions of fact and law separately, and upon which is predicated the judgment of ouster herein rendered:

CONCLUSIONS OF FACT.

1. I find that respondents have a valid contract made under the laws of the state of Texas, and the several ordinances of the city of Corpus Christi, whereby they were authorized to construct and maintain a ship channel between Corpus Christi and Aransas bays, to be of the depth of eight feet and the width of not less than one hundred feet at ordinary tides; and that they were required to maintain the same at said dimensions, and not permit the same to shoal or fill up so as to impede free navigation of said channel; and that in consideration of the same, respondents have the right to collect tolls on all vessels passing through said channel until the bonds issued by the city of Corpus Christi, in the sum of $500,000, and the interest thereon, are satisfied out of said tolls.

2. I find that respondents are the lawful owners and holders of all said outstanding channel bonds, and have all the rights and franchises of D. S. Howard & Co., and of the city of Corpus Christi, in relation to said ship channel.

3. I find that on the 12th of May, 1874, said channel was accepted by the city of Corpus Christi as of the required width and depth, and constructed according to contract; and by the declaration and ordinance accepting same, Morris & Cumings, or their assigns, were required to maintain said channel at all times of the said width and depth of the contract, and not permit the same to shoal or fill up so as to impede or delay free navigation of said channel.

4. I find that the agent of respondents, prior to the 8th of May, 1877, was notified by one of the pilots bringing vessels through said channel, that said channel was deficient in width and depth at ordinary tides, and that vessels were being impeded and delayed thereby, and that agent answered: “Morris & Cumings will never throw another shovelfull from that channel.”

5. I find that on or about May 8, 1877, respondents had further notice of the continued condition of deficiency in width and depth of said channel at ordinary tides from the city council of Corpus Christi, one of the contracting parties, who, by the ordinance, declared the existence of said deficiency, and the suspension of collection of tolls upon said channel; that said notice was, by official publication of said ordinance and proceedings of the council in the official journal, and also actual notice upon the agent of respondents afterward, who refused to regard said notice.

6. I find from at least the 8th of May, 1877, until the month of April, 1881, the respondents wilfully failed and neglected to comply with their contract and restore and maintain the said channel to the contract depth and width at ordinary tides, but permitted shoals to exist and increase for fully four years, and the free navigation of said channel during said period was impeded and delayed for the class of vessels and steamers arriving and departing from the port of Corpus Christi and passing through said channel; and that respondents continued to exact and collect tolls during all of said period, and did receive as tolls from relators and others from the 8th of May, 1877, to the 31st of March, 1881, the full sum of money as tolls of forty-one thousand five hundred and seventy-four dollars.

7. I find that respondents, about the 26th of April, 1881, commenced work upon said channel, and they prosecuted said work of dredging until about September 1, 1881, and since the latter date steamers drawing eight and eight and a half feet have passed through said channel without hindrance or delay.

CONCLUSIONS OF LAW.

1. I find that since the 12th of May, 1874, a valid and binding contract has existed between the city of Corpus Christi and Morris & Cumings (now represented by respondents), whereby, for the consideration of five hundred thousand dollars in bonds of said city and interest from 1858, known as the Ship Channel Bonds (and as pleaded by respondents), and to be paid out of tolls on the said Corpus Christi ship channel, said Morris & Cumings, or their assigns, agreed to complete said ship channel to the depth of eight feet and a width of one hundred feet at ordinary tides, throughout its whole extension, and at such dimensions at all times during the continuance of their franchise maintain said channel and not permit it to shoal or fill up so as to delay or impede the free navigation of said channel.

2. That said contract bestowed the franchise of collecting tolls upon respondents, and a compliance with said conditions by respondents was indispensable to the legality and validity of exercising said franchise; that the conditions of said contract requiring respondents to keep said channel at all times of the depth of eight feet and a width of one hundred feet at ordinary tides throughout the length of said channel, and not permit the same to shoal and fill up so as to impede or delay the free navigation of said channel, was an important consideration of said contract, and material.

3. The respondents are guilty of willful misuser of the franchise of collecting tolls amounting to the sum of forty-one thousand five hundred and seventy-four dollars, while willfully failing and neglecting, after notice, to keep said channel of the contract width and depth at ordinary tides; and willfully permitting said channel to shoal and fill up so as to delay and impede the free navigation of the same for four years; and the state and relators are entitled to their judgment of ouster and forfeiture of the franchise of respondents, who are unlawfully intruded into the same.

Appella...