Cummings v. State

• Decision Date: 10 June 1884
• Docket Number: Case No. 5162.
• Citation: 62 Tex. 728
• Court: Texas Supreme Court
• Parties: MORRIS & CUMMINGS ET AL. v. THE STATE OF TEXAS EX REL. N. GUSSETT ET AL.

62 Tex. 728

MORRIS & CUMMINGS ET AL.

v.THE STATE OF TEXAS EX REL. N. GUSSETT ET AL.

Case No. 5162.

Supreme Court of Texas.

Jun. 10, 1884.

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

The opinion states the case.

McCampbell & Givens, for appellants, on jurisdiction, cited: Const., art. 5, sec. 8; State v. De Gress, 53 Tex., 387; Wood on Mandamus and Quo Warranto, p. 233; 63 N. Y., 320.

That the proceeding by quo warranto would not lie, they cited: R. S., Appendix, p. 45; Banton v. Wilson, 4 Tex., 406;Williams v. Davidson, 43 Tex., 1;State v. Rio Grande R. R. Co., 41 Tex., 217;State v. Lyons, 31 Iowa, 432.

That the state could authorize the improvement of navigable waters, they cited: Sec. 196, law re-incorporating City of Corpus Christi, passed May 22, 1873; Kimball v. County of Mobile, 6 Otto, 691; Angell, Watercourse (Perkins' ed.), p. 721, note 4, citing Moor v. Veazie, 32 Me., 343; Angell, Watercourse, pp. 728, 750, and note; Wisconsin River Improvement Co. v. Manor, 28 Am. Rep.; Pound v. Turck, 5 Otto, 459;Veazie v. Moor, 14 How., 568; Grant v. Leach, 20 La. An., 329; State v. New Orleans Nav. Co., 5 Mar. (La.), 511.

That the rights of appellants could not be divested by legislative act or ordinance, they cited: Bill of Rights, Const. 1845 and 1870, sec. 14; Bill of Rights, Const. of 1876, sec. 16; Milam Co. v. Bateman, 54 Tex., 153; Terrett v. Taylor, 3 Pet. Cond. Rep., 295; 9 Cranch, 43; Pawlett v. Clarke, 3 Pet. Cond. Rep., 418; University v. Fay, 1 Murphy, 58; Dartmouth College Case, 4 Pet. Cond. Rep., 479; Cooley's Con. Lim., p. 278 and note; Id., pp. 289, 295; Toulumne Redemption Co. v. Sedgewick, 16 Cal., 11; Commonwealth v. New Bedford Bridge, 2 Gray, 339;State v. Hawthorne, 9 Mo., 389;Von Hoffman v. City of Quincy, 4 Wall., 535;Broughton v. Pensacola, 3 Otto, 266; Dillon on Mun. Corp., p. 151; West River Bridge Co. v. Dix, 6 How., 529.

That the legislature could validate bonds irregularly issued by a municipal government, they cited: Treasurer v. Folsom, Withrow's American Corporation Cases, vol. 2, p. 551 (reported in 13 Minn., 219);City of Beloit v. Morgan, 7 Wall., 619; Cooley's Const. Lim. (3d ed.), pp. 224, 293, notes, 2, 373.

Welch & Givens and D. McNeil Turner, for appellees, on jurisdiction, cited: Const., art. XII, sec. 4; Gen. Laws 1879, extra session, ch. 48, secs. 1, 4, 6; Austin v. G., C. & S. F. R. R. Co., 45 Tex., 236;State v. S. P. R. R. Co., 24 Tex., 113;Brennan v. Bradshaw, 53 Tex., 330;State v. De Gress, 53 Tex., 387;State v. Hunton, 28 Vt., 594;Commonwealth v. Arrison, 15 Serg. & R., 127;People v. Utica Insurance Co., 15 Johns., 362;State v. McDaniel, 22 Ohio St., 354;People v. Miller, 15 Mich., 354; Statute of Anne, ch. 20, 9 Anne, A. D. 1711; High on Ext. Rem., sec. 624, citing People v. Holden, 28 Cal., 123; also secs. 650, 653, 712 and authorities, 713, 720 and 724; also ch. 13, secs. 684, 696, 697, 698; Angell & Ames on Corp., 734; Dillon on Mun. Corp., secs. 844, 888, 890 (3d ed.); State v. Messmore, 14 Wis., 115.

That the charter of a municipal corporation is not a contract and may be repealed at any time, they cited: Const. 1876, art. 12, sec. 3; Special Laws 1875, ch. 88, p. 135; Blessing v. City of Galveston, 42 Tex., 642;Meriwether v. Garrett, 12 Otto, 511;East Hartford v. Hartford Bridge Co., 10 How., 511;United States v. B. & O. R. R. Co., 17 Wall., 322;Girard v. Philadelphia, 7 Wall., 1;Barnes v. District of Columbia, 1 Otto, 540; Police Jury v. Shreveport, 5 La. An., 661; Amite City v. Clemens, 24 La. An., 27; New Orleans v. Hoyle, 23 La. An., 740; Philadelphia v. Fox, 64 Pa. St., 169; Trustees v. Tatman, 13 Ill., 30;Darlington v. Mayor, 31 N. Y., 164; Cooley on Const. Lim., secs. 192, 193, and authorities (4th ed.); Dillon on Mun. Corp. (3d ed.), secs. 64, 85, 87, and authorities, and sec. 967; Sedgwick on Cons. of Con. and Stat. Law, p. 582, and note of authorities.

A city corporation can make no sale or transfer of its charter rights unless authorized by the charter, citing: Special Laws 1854, ch. 95; Special Laws 1860, ch. 190; Williams v. Davidson, 43 Tex., 2;Pye v. Peterson, 45 Tex., 312; Dillon on Mun. Corp. (3d ed.), sec. 89 and authorities there cited; Cooley on Con. Lim., secs. 194 et seq. and authorities. As to delegation: Dillon on Mun. Corp. (3d ed.), secs. 96, 97; Cooley on Con. Lim., secs. 204 et seq. and authorities.

That an attempted validation of an illegal contract was violative of the constitution, they cited: Special Laws of 1884, ch. 95; Special Laws of 1860, ch. 190; Special Laws 1873, ch. 198, entitled “An act to re-incorporate the city of Corpus Christi,” sec. 196 et seq.; Special Laws 1875, ch. 88; Const. 1869, secs. 17, 18, and Bill of Rights, 1869, sec. 14; Const. 1869, art. 2, sec. 1; Brewer v. West, 2 Tex., 377; Cooley on Con. Lim. (4th ed.), pp. 493, 494, 495, 496, and notes; also p. 227; Sedgwick on Cons. of Con. and Stat. Law, pp. 411, 599, 600; Green's Brice's Ultra Vires, p. 746; Dillon on Mun. Corp. (3d ed.), secs. 77 (45), 78, 79 (46), and notes; Burroughs on Public Securities, pp. 232, 420, 423.

WILLIE, CHIEF JUSTICE.

This is an information in the nature of a quo warranto, filed by the county attorney of Nueces county, at the relation of N. Gussett and others, against the city of Corpus Christi, the firm of Morris & Cummings, and other defendants, requiring them to show by what authority they assumed the right to collect tolls on freight passing through the channel connecting the Bay of Aransas with the Bay of Corpus Christi. The information prayed for judgment ousting the defendants of the franchise which was alleged to have been usurped by them.

The city of Corpus Christi disclaimed all right to collect the tolls, admitted the invalidity of the claim, and asked that the suit might be dismissed as to the city, which was done.

The other defendants, joined by the Central Wharf and Warehouse Company, of Corpus Christi, a corporation chartered under our state laws, which had made itself party defendant to the suit, filed exceptions to the information; and Morris & Cummings and the above corporation filed a general denial, as also a special answer, setting up the facts under which they claimed the right of which it was sought to oust them.

They subsequently filed a supplemental answer, setting up additional grounds upon which they based their claim to tolls upon freight passing over the said channel.

To these answers the plaintiff filed a general demurrer.

The court below overruled the exceptions of defendants to the information, but sustained the demurrer of the plaintiff to the several answers of the defendants. The latter declining to amend, the court entered judgment ousting them of the franchise or right to collect toll on freight passing over the ship channel, and restraining them from exercising the right in future.

The defendants excepted and gave notice of appeal, and the case is now here for our review of the judgment and proceedings below.

It is insisted by the appellants that their demurrer to the information should have been sustained because the court had no jurisdiction of the suit. The objection to the jurisdiction raised here is that there is no allegation in the petition of the value of the franchise, nor that the relators are sought to be made liable for future tolls; nor is there any prayer for the recovery of former tolls paid by them.

Without passing upon the question of the jurisdiction of the district court in a suit of this nature regardless of the value of the franchise in controversy, it is a sufficient answer to the above objection to say that the information does state facts showing that the present franchise was of value far above the sum required to give the district court jurisdiction. It alleges the collection of more than $80,000 within less than seven years, and that the defendants were still unlawfully collecting tolls on freight passing through said waterway, to the damage of the relator and others. A franchise producing such an income is certainly of greater value than $500; and the allegation is that the relators as well as others contribute towards making up the aggregate sum paid to the claimants of the franchise.

Moreover, the present proceeding, although taken upon the relationof private persons, is in effect carried on by the state for the benefit not only of the relators but of the public generally. The amount of interest held by the relators in the subject-matter of this suit is of no importance, if the value of injury done to the public or of profit to the usurper by the exercise of the unlawful authority is sufficient to bring it within the jurisdiction of the court. State v. De Gress, 53 Tex., 387.

As to the ground taken under the demurrer of defendants, that quo warranto proceedings cannot be used to annul an ordinance irregularly passed, it is sufficient to say that the present suit has no such object. It seeks to oust parties of the enjoyment of a franchise claimed under legislation both of the state and the city government, and not to act directly upon the city of Corpus Christi and compel it to annul one of its ordinances. The latter was the object of the suit in the case cited as authority under this proposition; but it was expressly said that “an information in the nature of a quo warranto is authorized in cases where the franchise is exercised in the absence of the vital element of power,” which is the ground of action in the present cause. State v. City of Lyons, 31 Iowa, 432.

It is also suggested in argument, though not made as a distinct proposition, that the county attorney had no right to file the information, but that this right and duty pertains to the office of the attorney-general alone. A sufficient answer to this is, that both the constitution and the statute passed in pursuance of it authorize the county attorney to institute the proceeding. Const., art. 12, sec. 4; Statute of 1879, ch. 48, sec. 1.

The case of State v....