South & W. Ry. Co v. Commonwealth Ex Rel. Planary

• Decision Date: 14 September 1905
• Citation: 51 S.E. 824,104 Va. 314
• Court: Virginia Supreme Court
• Parties: SOUTH & W. RY. CO. v. COMMONWEALTH ex rel. PLANARY et al.

104 Va. 314

51 S.E. 824

SOUTH & W. RY. CO.

v.COMMONWEALTH ex rel. PLANARY et al.

Supreme Court of Appeals of Virginia.

Sept. 14, 1905.

1. Appeal—Questions not Raised at Trial —Jurisdiction.

An objection that the court had no jurisdiction of the proceeding is available on appeal, though not made in the trial court.

2. Quo Warranto—Right to Prosecute— Railroads—Charter—Noncompliance.

Va. Code 1904, pp. 1611, 1612, §§ 3022-3024, authorize the award of a writ of quo warranto against a corporation not municipal for misuse or nonuse of its corporate privileges and franchises, either by the Attorney General or, in case of his refusal, by a private prosecutor; and section 1105e, cl. 30 (page 566), declares that all corporations, whether expiring by limitation or are otherwise dissolved, shall be continued for such length of time as may be necessary for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle their business. Held, that section 1313a, cl. 58 (page 733), declaring that if the works of any internal improvement company be not commenced and be completed within the time prescribed by law or by its charter, or if the works be completed and the company abandon them, etc., the state may proceed against such company by writ of quo warranto, etc., to forfeit its franchises and sell its property, should be construed as a limitation on the general act, and hence a writ of quo warranto on the relation of a private prosecutor could not be maintained to terminate the franchises of a railroad company for failing to construct its road in the time allowed.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Quo Warranto, §5 40, 41; vol. 44, Cent. Dig. Statutes, §§ 302-305.]

Error to Corporation Court of Bristol.

Quo warranto by the commonwealth on relation of C. B. Flanary and others, against the South & Western Railway Company. From a decree in favor of relators, respondent brings error. Reversed.

A. A. Phlegar, J. N. Powell, and R. T. Irvine, for plaintiff in error.

D. D. Hull, W. S. Cox, Hoge & Bailey, Bailey & Byars, Bullitt & Kelly, and F. W. Christian, for defendants in error.

BUCHANAN, J. This is a writ of error to a judgment of the corporation court of the city of Bristol in a quo warranto proceeding, by which it was determined that the plaintiff in error had forfeited all its rights, privileges, and franchises as a corporation in this state, because it had failed to construct and have in operation 30 miles of its road in this state within the time required by its charter.

The first assignment of error to be considered, and the only one that can be considered if it is sustained, is that the trial court had no authority to issue the writ of quo warranto upon the petition of private persons. This question was not raised in the court below, and it is insisted by the relators that it cannot be made in this court for the first time.

The general rule is that a question not made in the trial cannot be raised in the appellate court. This rule, however, is subject to exceptions, one of which is that a question which goes to the jurisdiction of the court may not only be raised for the first time in the appellate court, but, where it appears that the trial court did not have jurisdiction, the appellate court may of its own motion take notice of that fact

As was said by President Tucker in Jones & Ford v. Anderson, 7 Leigh, 309, 314: "It must always be ex officio the duty of a court to disclaim a jurisdiction which it is not entitled to exercise. To do otherwise would be to usurp a power not conferred by law."

To hold that the question of the jurisdiction of the trial court could not be made in the appellate court for the first time would be in effect to hold that consent could give jurisdiction, and might result in the affirmance of a judgment which the trial court had no authority to enter. See Philips v. Com., 19 Grat. 485; Ryan v. Com., 80 Va. 385; Saunders v. Griggs, 81 Va. 506; McAllister v. Guggenheimer, 91 Va. 317, 320, 21 S. E. 475; Boston Blower Co. v. Carmen Lumber Co., 94 Va. 94, 100, 26 S. E. 390.

The ground upon which it is claimed that the trial court did not have jurisdiction is that the general law, which authorizes a writ of quo warranto to be awarded against corporations generally (other than municipal corporations), upon the petition of private persons, does not apply to a railroad or other internal improvement company for failureto complete its works within the time prescribed by its charter, because such a case is provided for by a special statute in which the state alone is authorized to institute a quo warranto proceeding. It is conceded that the provisions of the general law are sufficiently broad to embrace a railroad corporation; but the contention is that, where the special provision is in conflict with the general law, the special provision to the extent of such conflict will govern.

That special provision is as follows: "If the works of any internal improvement company be not commenced and be completed within the time prescribed by law, or by its charter, or if after such works be completed, the company abandon them, or for three successive years cease to use and fail to keep them in good repair, in each of these cases the state may proceed against such company by writ of quo warranto, and if in any such proceeding there is a judgment against the company, the commission shall forthwith take possession of its work and property and sell the same (except the debts owing to the company), and convey the works and property so sold to the purchaser thereof as soon as the purchase money has been paid, the deed of conveyance to be executed by the chairman of the commission under its seal. The commission shall, moreover, collect, as far as practicable, the debts aforesaid, and apply the proceeds thereof and of the said sale, after deducting the costs and expenses of the collection and sale, to the discharge of the liabilities of the company, and whatever remains after said liabilities are discharged, pay into the treasury of the state. Upon such conveyance to the said purchaser, he shall forthwith be a corporation by any name which may be set forth in such conveyance, or any writing signed by him and admitted to record in the county or corporation wherein the conveyance shall be admitted to record; and to the corporation thus created all the provisions of section twelve hundred and thirty-four of the Code shall apply, except that the franchises, rights, and privileges to which such corporation shall succeed and the duties which it shall perform, shall be such as would have been had or performed by the first company but for the judgment aforesaid in the proceeding by writ of quo warranto, or information in the nature of a writ of quo warranto, save only as in said section provided." Va. Code 1904, p. 733, § 1313a, cl. 58.

The general statutes, which it is claimed contain provisions in conflict with that special provision, are as follows:

Va. Code 1904: "Sec. 3022. In what cases writ of quo warranto awarded. A writ of quo warranto may be awarded and prosecuted in the name of the state of Virginia in any of the following cases, to wit:

"First. Against a corporation (other than a municipal corporation) for a misuse or nonuse of its corporate privileges and franchises, or for the exercise of a privilege or franchise not conferred upon it by law, or where a charter of incorporation has been obtained by it from a court for a fraudulent purpose, or for a purpose not authorized by law;

"Second. Against a person for the misuse or a nonuse of any privilege and franchise conferred upon him by or in pursuance or law;

"Third. Against any person or persons acting as a corporation (other than a municipal corporation) without authority of law; and

"Fourth. Against any person who shall intrude into or usurp any public office. But no such writ shall be awarded or prosecuted against any person now in office for any cause which would have been available in support of a proceeding to...