Leona I., M. & C. Co. v. Roberts

• Decision Date: 09 December 1884
• Docket Number: Case No. 1627.
• Citation: 62 Tex. 615
• Parties: LEONA I., M. AND C. CO. v. O. M. ROBERTS, GOVERNOR.
• Court: Texas Supreme Court

62 Tex. 615

LEONA I., M. AND C. CO.

v.O. M. ROBERTS, GOVERNOR.

Case No. 1627.

Supreme Court of Texas.

Dec. 9, 1884.

APPEAL from Frio. Tried below before the Hon. D. P. Marr

This suit was brought by appellee, as governor of Texas, to recover a penalty of $9,000, on the following instrument:

+-----------------------+
                ¦“THE STATE OF TEXAS, ¦)¦
                +---------------------+-¦
                ¦County of Bexar.     ¦)¦
                +-----------------------+
                

Know all men by these presents, that the Leona Irrigation, Manufacturing and Canal Company, as principal, and H. F. & W. H. Young, Hugo & Schmeltzer and Wm. H. Young, as sureties, are held and firmly bound unto R. B. Hubbard, governor of the state of Texas, and his successors in office, in the sum of nine thousand dollors, good and lawful money of the United States, for the payment of which, well and truly to be made, we jointly and severally obligate and bind ourselves, our heirs and legal representatives: Conditioned, that the said Leona Irrigation, Manufacturing and Canal Company shall keep the ditch of said company on Leona river, in Frio county, as described and identified by the report of Henry C. King, Inspector of Canals and Ditches west of the Colorado river, dated December 2d, 1876, for twelve miles and five hundred and sixty-eight feet, fourth class ditch, in proper repair, so that the water will flow freely through in its entire length and irrigate the land along the ditch, that the flow of water is capable of irrigating, for the term of ten years from the completion of said ditch. This bond being required by the governor to satisfy him that the said Leona Irrigation, Manufacturing and Canal Company have the ability and intend to keep said ditch in full repair and efficiency for the period of ten years under the provisions of the act approved March 10th, 1875, entitled‘ An Act to encourage the construction of Canals and Ditches for Navigation and Irrigation purposes.'

In testimony whereof, witness our signatures, this the eighth day of December, 1876.

WM. H. YOUNG,

President of the Leona Irrigation, Manufacturing and Canal Co.

H. F. & W. H. YOUNG.

HUGO & SCHMELTZER.

WM. H. YOUNG.”

The paper was attached to and made a part of plaintiff's petition. In the original petition it was alleged:

1st. That the company was duly incorporated.

2d. That the ditch was constructed under the act of March 10, 1875.

3d. That it was inspected by H. C. King, inspector, etc., and that he made his report, approving the same, according to law.

4th. That the company was entitled, under said act (March 10, 1875), to certificates for seventy-two and one-third sections of land.

5th. That before the issuance of the certificates by the commissioner of the general land office, the company was required by the governor of the state of Texas to enter into and give the bond sued on.

6th. That in accordance with said requirement and the provisions of said act (March 10, 1875), the bond sued on was given.

7th. That the defendant corporation failed and neglected to keep the ditch in repair according to the requirements of the bond.

8th. That by failing and neglecting that duty, the obligors became indebted to the plaintiff in the sum of $9,000.

Defendants answered by general and special exceptions, which were overruled by the court. General denial and special answers, in substance, as follows:

1st. That the company constructed the ditch in good faith, and had the intention and ability to keep the same in repair, and that they did so by the expenditure of large sums of money so long as the state of Texas or any individual could be benefited thereby, and so long as the flow of water in the river was sufficient in volume to enable human skill to secure a flow through the ditch.

… 4th. That the defendants had invested large sums of money in the ditch and were most to be benefited by keeping it in repair, and were always ready, able and anxious to do so, if it had been possible to secure sufficient water.

5th. That other ditches were taken out from the river above this one by individuals and chartered companies, with charters junior to that of defendants, which consumed the water and contributed to render this ditch worthless.

6th. That these things were unforeseen by defendants, and occurred through no fault of theirs, and that they are the only persons damaged thereby--in the sum of $15,000.

Verdict in favor of the plaintiff for the sum of $9,000.

Houston Bros., with L. C. Grothaus, for appellant, on their proposition that the court should have sustained their demurrer, cited: Orig. Pet. and Bond, Trans., pp. 1-3 and 8-17; Gen'l Laws 1875, pp. 77-8; Wooters v. Smith, 56 Tex., 206et seq.; Johnson v. Erskine, 9 Tex., 10;Sullivan v. Alexander, 19 Johns., 234; Smith v. Allen, 21 Am. Dec., 33.

That the bond was not a statutory bond, they cited: Act of Aug. 21, 1876, Gen. Laws 1876, p. 254, secs. 5, 6.

That the bond was not a common law bond and was void, they cited: Wooters v. Smith, supra; Johnson v. Erskine, supra;Holmes v. State, 44 Tex., 633;Hanks v. Horton, 5 Tex., 104, 105;Benedict v. Bray, 2 Cal., 251; 1 Wait's Ac. & Def., p. 683; Thompson v. Lockwood, 15 Johns., 256; Lansing v. Fleet, 2 Johns. Cas., 2; Smith v. Allen, 21 Am. Dec., 33; Sullivan v. Alexander, 19 Johns., 234.

“An officer in the discharge of his official duties who denies a legal right, even though the same be but a right given by statute, unless the party seeking the same will do more than the law requires, is a coercer and oppressor, through whose contracts no one ought to be permitted to claim rights.” Justice Stayton in Wooters v. Smith, supra.

That the act of March 10, 1875, constituted the contract between the state and the defendant corporation, and could not be changed or made more onerous, either by the governor or the legislature, so as to affect the rights acquired thereunder by the defendant corporation: Wade on Retroactive Laws, pp. 53 and 106; Const., sec. 16, art. 1.

That the bond was not a voluntary bond, and the penalty, $9,000, was an arbitrary amount fixed by the governor, and cannot be construed as agreed or stipulated damages: Gen. Laws 1875, pp. 77-8; Orig. Pet. and Bond, supra.

Templeton, Attorney-General, for the state, filed a printed argument.

John D. Morrison and L. D. Murphy, also for appellee, on their proposition that the bond, though not statutory, was good, cited: Thompson v. Buckhannon, 2 J. J. Marsh., 416;United States v. Bradley, 10 Pet., 361; Parker v. The State, 4 Ga., 329; Archer v. Hart, 5 Fla., 234; Alexander v. Silbernagel, 27 La., 557; Wolf v. McClure, 79 Ill., 564; Clewsen v. Shaw, 30 Am. Dec., 338; Notes to Simpson v. Harris, 14 Am. Dec., 103, 104 and 105;United States v. Tingey, 5 Pet., 127.

WILLIE, CHIEF JUSTICE.

The important question in this case arises upon the action of the court below overruling the demurrer to appellee's petition.

Whether this ruling was correct or not depends upon whether the bond, which was the foundation of this suit, was a void or a valid instrument.

It was alleged to have been taken under an act of the legislature approved March 10, 1875, entitled “An act to encourage the construction of canals and ditches for navigation and irrigation.”

The third section of that act provides substantially as follows: That whenever any corporation or company shall have constructed, as required in the act, a section of three miles or more of canal, application may be made to the governor to have the same examined, whose duty it shall be to direct the state engineer, or to appoint some competent person, to examine and classify the same, and report under oath thereon. If the governor shall be satisfied that the work has been done in compliance with the act, he shall certify the same to the commissioner of the general land office. Whereupon the commissioner shall issue to the company or corporation the number of land certificates it may be entitled to by the classification of the canal. The section of the act from which the above is taken contains a proviso to this effect: that such company or corporation, before they shall be entitled to receive any benefit from the state under the act, shall satisfy the governor by such proof as he may require that they have constructed such canal or ditch in good faith, in order to carry out and accomplish the objects of the act, and that said corporation or company have the ability and do intend to keep said canal or ditch in full repair and efficiency, for the purposes of the act, for the period of ten years after it is fully completed; and if the said company do not by such proofs as the governor may require, so satisfy him, they shall not receive any benefit under the act.

It appears from the petition that the canal had been constructed and inspected in accordance with the act for the distance of twelve miles and five hundred and thirty-eight feet, and that upon the report of the inspector to that effect, certificates for seventy-two and a third sections of land were issued and delivered to the appellant company. The petition then alleges that before the issuance of said certificates the company was required by the governor to give bond in the sum of $9,000, under the provisions of the proviso above set out, conditioned that the company would keep the ditch in proper repair, so that the water would flow freely through its entire length, and irrigate the land along the ditch, that the flow of water was capable of irrigating, for the term of ten years from the completion of said ditch. The bond also recites that it was required by the governor to satisfy him that the company had the ability and intended to keep the ditch in full repair and efficiency for the period of ten years under the provisions of the said act.

It is clear from these allegations, and from the instrument itself made part of the petition, that the bond was required as a prerequisite to the issuance of the certificates to the company. It was given to satisfy the governor of facts...