State v. Morris

• Decision Date: 26 March 1889
• Parties: STATE <I>ex rel.</I> GUSSETT <I>et al.</I> <I>v.</I> MORRIS <I>et al.</I>
• Court: Texas Supreme Court

11 S.W. 392

STATE ex rel. GUSSETT et al.

v. MORRIS et al.

Supreme Court of Texas.

March 26, 1889.

Appeal from district court, Aransas county; H. CLAY PLEASANTS, Judge.

This suit was commenced by an information in the nature of quo warranto, filed by the county attorney of Nueces county, at the relation of N. Gussett and others, in the district court of the said Nueces county, on the 30th of June, 1881, against the appellees, requiring them to show by what authority they assume to charge and to collect tolls on freight passing through the ship channel connecting the waters of Corpus Christi and Aransas bays. The original and the supplemental information also charged the appellees with misuser, to-wit, failing for more than four years to maintain the ship channel the required width and depth, according to the terms of their contract, yet assuming to collect and actually collecting as tolls from the relators and others upon the said ship channel, while thus deficient, more than the sum of $40,000, and in disregard of the declared suspension of their right to such tolls by the city council of the city of Corpus Christi. The case has been twice tried, and been both times before the supreme court on appeal, and the judgment reversed. See 62 Tex. 742; 65 Tex. 53. Since the last appeal the case has been removed for trial to Aransas county, and a judgment rendered against the state and relators, who appeal, and assign errors. In accordance with the decision of the supreme court on the last appeal, the city of Corpus Christi was made a party respondent, and the issue on trial was practically the effect of the misuser of four years of the franchise by Morris & Cumings, and their persistence in the collecting of tolls while the channel was deficient in the contract width and depth, and while the city of Corpus Christi had declared said tolls suspended. The case was tried without the intervention of a jury, and the court in its findings of facts substantially finds that the channel was deficient in the manner and for the time complained of, but refused the forfeiture on the grounds that it would be a damage to the grantee and an injury to the public, in that it would deprive the respondents Morris & Cumings of the only means they have of reimbursing themselves for the large amount of money necessarily expended in the excavation and repairing of the channel, and would leave the city of Corpus Christi powerless to keep open a water-way, which is indispensable for her commerce.

D. Givens, Co. Atty., and Stanley Welch, for appellants. McCampbell & Son, for appellees.

STAYTON, C. J.

This cause has twice been before this court, and its history and leading facts will be found in the former reports of the decisions made. 62 Tex. 729; 65 Tex. 53. On the last trial the conclusions of law and fact were as follows: "First. That the respondent the city of Corpus Christi, under charter from the state of Texas, was authorized to open the ship channel which connects the water-ways of Corpus Christi bay with those of Aransas bay, and to collect and charge tolls from all vessels passing through said channel; and that the charter required that this channel should have a width of one hundred feet, and a depth of eight feet, and that this width and depth of channel should be maintained during the continuance of the franchise, and that the said charter will expire in the year 1904. Second. That, under a valid and binding contract between the said city and the respondents Morris & Cumings, the said Morris & Cumings excavated said channel in the year 1874, and under said contract Morris & Cumings were authorized to collect tolls from vessels navigating said channel, and apply the same to the liquidation of the bonds of the city executed to secure the excavation of said channel; and that said channel was made by said respondents in accordance with the terms and conditions of the charter; and that the said Morris & Cumings were collecting tolls under their contract at the time of the institution of this suit, and had continuously collected such tolls from the completion of the channel in May, 1874; that from 1874 to March, 1881, these collections aggregated about $80,000; that the contract price for cutting the channel was $500,000; that between the years 1877 and 1881 there was not a strict compliance on the part of the contractors with the terms of their contract, and of the charter granted the city of Corpus Christi; during this period, or at least during a greater portion of it, the depth of water in the channel was about 7½ feet, while the width of the channel for the distance of half a mile, extending inwardly from each of its entrances, was from 95 to 80 feet, and at one point the width was less than 60 feet; that the navigation of the channel from the early part of 1877 or latter part of 1876 to September, 1881, was impeded and retarded to some extent, several ships within that period being grounded, and some of them delayed for several days in the channel; that formal complaint was made by one of the pilots of the Aransas and Corpus Christi bays of the condition of the channel in February, 1881, to the local agent of Morris & Cumings, who immediately notified his principals, whose residence was in New York, and upon receipt of this information they ordered repairs to be made upon the channel, and these were begun in April, 1881, and finished in September of that year; that in 1877 the city council of Corpus Christi caused a measurement of the channel to be made, and, upon finding that the width and depth thereof were not up to the requirements of their charter, the council by ordinance suspended, as they were authorized to do, under their contract with Morris & Cumings, the collection of tolls, but notwithstanding this ordinance tolls were demanded by Morris & Cumings from all vessels navigating the channel; that the work made on the channel by Morris & Cumings, in 1881, restored both its original width and depth, so that ships drawing as much as eight feet passed through it without let or hindrance. The conclusions of the court upon the law of the case are that while a franchise may be forfeited for any act or omission of the grantee which is violative of the terms and conditions of the grant, the power of revocation should be exercised with caution, and that a forfeiture should never be declared when its only effect would be damage to the grantee and injury to the public. And as in the judgment of the court a forfeiture in this case would deprive the respondents Morris & Cumings of the only means they have of reimbursing themselves for the large amount of money necessarily expended in the excavation and repairing of the channel, and would leave the city of Corpus Christi powerless to keep open a water-way, which is indispensable for her commerce, the judgment of ouster prayed for is refused."

The former decisions establish several propositions: (1) That the franchise which it is the purpose of this action to have declared forfeited, under valid legislation vested in the city of Corpus Christi; (2) that the contract between the city and Morris & Cumings, whether originally valid, was validated by the legislation referred to in former decisions; (3) that...