Kansas City, M. & O. Ry. Co. of Texas v. Cole

• Citation: 145 S.W. 1094
• Parties: KANSAS CITY, M. & O. RY. CO. OF TEXAS v. COLE et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 24 February 1912
• Court: Texas Court of Appeals

145 S.W. 1094

KANSAS CITY, M. & O. RY. CO. OF TEXAS v. COLE et al.^†

Court of Civil Appeals of Texas. Ft. Worth.

February 24, 1912.

Rehearing Denied March 30, 1912.

Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.

Suit by S. A. Cole and others against the Kansas City, Mexico & Orient Railway Company of Texas. From an order granting a temporary injunction against defendant's removal of its general offices, machine shops, roundhouse, etc., from the town of Sweetwater, defendant appeals. Reversed.

J. McD. Trimble and J. A. Eaton, both of Kansas City, Mo., H. S. Garrett, of Sweetwater, C. C. Higgins, of Snyder, and Blanks, Collins & Jackson and Hill, Lee & Hill, all of San Angelo, for appellant. R. C. Crane and Beall & Beall, all of Sweetwater, and Stephens & Miller, of Ft. Worth, for appellees.

DUNKLIN, J.

The Kansas City, Mexico & Orient Railway Company of Texas has appealed from an order, made by the judge of the Thirty-Second judicial district, granting a temporary writ of injunction restraining the removal of its general offices, machine shops, roundhouse, and other divisional facilities from the town of Sweetwater, and requiring a return to Sweetwater of such facilities as had theretofore been removed from Sweetwater, and further restraining the appellant from so amending its charter as to permit such a removal. The injunction was granted at the instance of S. A. Cole, R. A. Ragland, J. H. Beall, and Ellis Douthit, executor of the estate of J. S. Douthit, deceased, plaintiffs in the suit, who prayed that the temporary injunction sought should, upon final hearing, be made perpetual; and the injunction was the only relief prayed for in plaintiffs' petition. The fiat of the judge, granting the temporary injunction was indorsed on the back of the petition upon the same date the petition was filed, and it is apparent that the writ was granted upon the allegations in the petition, which had been verified by one of the plaintiffs without notice to the defendant, and without giving defendant an opportunity to be heard in answer to the petition.

This suit is predicated upon article 4367, Revised Statutes 1895, which reads: Every railroad company chartered by this state, or owning or operating any line of railway within this state, shall keep and maintain permanently its general offices within the state of Texas at the place named in its charter for the locating of its general offices; and if no certain place is named in its charter where its general offices shall be located and maintained, then said railroad company shall keep and maintain its general offices at such place within this state where it shall have contracted or agreed or shall hereafter contract or agree to locate its general offices for a valuable consideration; and if said railroad company has not contracted or agreed for a valuable consideration to maintain its general office at any certain place within this state, then such general office shall be located and maintained at such place on its line in this state as said railroad companies may designate to be on its line of railway. And such railroads shall keep and maintain their machine shops and round houses, or either, at such place or places as they may have contracted to keep them for a valuable consideration received; and if said general offices and shops and round houses, or either, are located on the line of a railroad in a county which has aided said railroad by an issue of bonds in consideration of such location being made, then said location shall not be changed; and this shall apply as well to a railroad that may have been consolidated with another as to those which have maintained their original organization."

We have reached the conclusion that plaintiffs' petition is fatally defective as against a general demurrer. It is quite voluminous, covering 20 typewritten pages in the transcript; but the material issues presented can be briefly stated. According to allegations therein, plaintiffs, together with other citizens of Sweetwater, purchased stock and bonds of the Colorado Valley Railway Company, chartered under the laws of the state of Texas, paying an aggregate consideration of $100,000 therefor, and procured for the company a right of way through Nolan county at a cost of $5,000 to those citizens, in consideration for a contract and agreement by that company with plaintiffs and the citizens of Sweetwater generally, acting through a committee, that it would construct its railway from Sweetwater through Nolan county, instead of from Colorado City through Mitchell county, as theretofore planned, and that it would establish and always maintain its principal offices, machine shops, and roundhouse in Sweetwater, instead of in the town of Robert Lee, as formerly contemplated. In compliance with this contract, the Colorado Valley Railway Company did construct its line of railway through Nolan county to Sweetwater, where its principal offices, machine shops, and roundhouse were established and maintained, until that railway company became insolvent and unable to continue its business. Thereafter plaintiffs and other citizens of Sweetwater, who had so purchased stock and bonds of said railway company, and had procured for it the right of way through Nolan county, planned a reorganization of the railway company, for the purpose of fulfilling the foregoing contract of said company, and in furtherance of that plan appointed a committee, vested with authority to institute a suit for a judicial decree of foreclosure to sell all the charter rights, privileges, and properties of said company, to purchase the same at such sale, and to charter a new corporation, for the purpose of taking over the same. Exercising the authority so vested in them, the committee did cause a suit to be instituted in the district court of Nolan county, which court appointed a receiver of the property and decreed the foreclosure sale contemplated; and at the sale made under and by authority of that decree the committee purchased all the charter rights, privileges, and properties of the Colorado Valley Railway Company for the use and benefit of plaintiffs and other citizens of Sweetwater who had purchased stocks and bonds of the company under its contract, noted above. After this sale, the purchasers procured a charter, under the laws of the state of Texas, for a railway company under the name of the Panhandle & Gulf Railway Company, for the purpose of fulfilling said contract which the old company had entered into relative to the location and maintenance of shops, offices, and roundhouse in Sweetwater, and that company afterwards, by amendment of its charter, changed its name to that of the Kansas City, Mexico & Orient Railway Company of Texas, the defendant in this suit. Plaintiffs instituted this suit in their individual rights and solely for their individual benefit. It was further alleged that said contract was made for the benefit of the city of Sweetwater and all its citizens.

The following articles appear in Sayles' Civil Statutes:

Article 4549: "In case of the sale of the entire road bed, track, franchise and chartered right of a railroad company, whether by virtue of an execution, order of sale, deed of trust or any other power, the purchaser or purchasers at...