State v. International & G. N. R. Co.

• Decision Date: 25 May 1896
• Parties: STATE v. INTERNATIONAL & G. N. R. CO.
• Court: Texas Supreme Court

35 S.W. 1067

STATE v. INTERNATIONAL & G. N. R. CO.

Supreme Court of Texas.

May 25, 1896.

Certified question from court of civil appeals of First supreme judicial district.

Quo warranto on the relation of the county attorney of Galveston county, in the name of the state, against the International & Great Northern Railroad Company.

C. A. Culberson, Atty. Gen., and Frank Andrews, Asst. Atty. Gen., for appellant. John M. Duncan, Alex. G. Cochran, W. S. Pierce, T. N. Jones. R. G. Street, and Douglas & Jackson, for appellee.

DENMAN, J.

In this cause the court of civil appeals have certified to this court a question and explanatory statement as follows:

"This was an information in the nature of quo warranto instituted in the name of the state by the county attorney of Galveston county, in the district court thereof, by leave of the judge of said court, against the International & Great Northern Railroad Company, a private railway corporation, existing and operating railroads under the laws of Texas, charging that it was exercising a power not conferred upon it by law, and demanding, receiving, and collecting charges as fares or tolls, without being authorized to do so by law. The particular acts charged against defendant may be briefly stated as follows, to indicate their nature: "That on or about the 12th day of July, 1892, the defendant, without warrant or authority of law, seized and took possession of all and singular the railroad of the Galveston, Houston & Henderson Railroad Company, also a railroad corporation and a common carrier, and its road, a public highway, and all equipment and property appurtenant thereto, and usurped all the functions, powers, and franchises of said Galveston Company, and was exclusively possessing and monopolizing said Galveston Company's railroad, and had continuously since that date, and was then demanding, receiving, and collecting, without any authority whatever of law, all charges as freight, fares, and tolls for the use of said Galveston, Houston & Henderson Railroad; that defendant was not, by any of the acts creating it, nor by the constitution or general laws of Texas, given any right, power, or authority whatsoever to possess, use, operate, manage, or control said public highway, nor to demand, receive, or collect any of the charges as freights or fares for the use of said public highway, nor to exercise, appropriate, or use any of the rights, privileges, functions, or franchises granted to or conferred upon said Galveston, Houston & Henderson Railroad Company; and that, in possessing, using, operating, managing, controlling, and withholding the aforesaid public highway, and in demanding, receiving, and collecting charges as freight, fares, or tolls for the use of said public highway, of all persons for the use by them of the same, and in usurping, intruding into, exercising, appropriating, using, and withholding the rights, privileges, functions, and franchises granted to, conferred upon or imposed upon said Galveston, Houston & Henderson Railroad Company, said defendant had exercised and was exercising power not conferred upon it by law, and was demanding, receiving, and collecting charges, as freight, fares, or tolls for the use of said public highway, without being authorized so to do by law. A change of venue in the cause was granted by the Galveston court to Chambers county, and there the district attorney appeared for the state, and filed pleadings in its name, and prosecuted the action in its behalf. On demurrer of defendant the cause was dismissed by the court below, on the ground that neither the county attorney nor district attorney had authority to institute or conduct the proceeding.

"The question is certified to the supreme court, whether or not, under our constitution and laws, those officers are clothed with such authority."

If the district or county attorney had authority to institute the proceeding in question, it must be found in the following statute: "Section 1. Be it enacted by the legislature of the state of Texas, that in case any person shall usurp, intrude into, or unlawfully hold or execute, or is now intruded into, or now unlawfully holds or executes any office or franchise, or any office in any corporation created by the authority of this state, or any public officer shall have done or suffered any act which by the provisions of law works a...