State v. San Antonio St. Ry. Co.

• Decision Date: 27 February 1895
• Citation: 30 S.W. 266
• Parties: STATE ex rel. ELMENDORF et al. v. SAN ANTONIO ST. RY. CO.
• Court: Texas Court of Appeals

30 S.W. 266

STATE ex rel. ELMENDORF et al. v. SAN ANTONIO ST. RY. CO.

Court of Civil Appeals of Texas.

February 27, 1895.

Appeal from district court, Bexar county; George H. Noonan, Judge.

Suit by the state of Texas, on the relation of Henry Elmendorf and others, against the San Antonio Street-Railway Company, to obtain a writ of mandamus to compel the defendant to continue the operation of a certain line of street railway. From the sustaining of demurrers to the petition the state and relator appeal. Reversed and remanded.

Wright & Summerlin, for appellants. Houston Bros., for appellee.

FLY, J.

On August 28, 1894, appellants filed this suit in the district court of Bexar county for the purpose of obtaining a writ of mandamus to compel appellee to continue the operation of a certain line of street railway, which it had constructed and operated from the interior of the city of San Antonio to Lake View, a suburban property in said city, for a time, but had ceased to operate. It was alleged that the road was built and operated by virtue of a charter from the state, an ordinance of the city, and a contract that it had entered into with the New England Land Company. Exceptions were filed to the petition, which alleged that the petition was insufficient, because it sought to enforce the specific performance of a private contract by and between private corporations, and does not allege any contract between relators and respondent. The exceptions were sustained. The writ of mandamus, as used in modern times, may properly be defined as a command or order issuing from a court of competent jurisdiction requiring some officer, inferior court, or corporation to perform some duty enjoined by law. This duty may be, as in the case of the officer, one that pertains to and results from the official position, or may arise by operation of law. Corporations are creatures of the state, and deriving all their rights and franchises from the sovereign authority, it is well settled that it is within the power of the state to compel the proper exercise of corporate functions. It is therefore recognized as the proper rule that where duties are imposed by law upon private corporations, and no other specific remedy is provided, the writ of mandamus should be granted. The duties incumbent on the corporation may arise from the operation of law as expressed, or by implication from the powers granted and the duties enjoined. It may be laid down as a general rule that whenever the aid of the government is granted to a private corporation in the form of a monopoly, or a donation of public property or funds, or a delegation of the grant of eminent domain the grant is subject to an implied condition that the company shall assume an obligation to fulfill the public purpose on account of which the grant was made. 2 Mor. Priv. Corp. 1129. The grant of the charter by the state and the ordinance of the city giving permission to use the streets, and the occupation of the street by the railway company by virtue thereof, creates an obligation and public duty upon the part of the company that can be enforced by writ of mandamus. Booth, St. Ry. Law, § 65; Mor. Priv. Corp. §§ 486, 487. And this public duty may be enforced at the instance of a private individual. Railroad Co. v. Hall, 91 U. S. 343; State v. Chicago, M. & N. R. Co. (Wis.) 48 N. W. 243, 12 L. R. A. 180, and notes; City of Potwin Place v. Topeka Ry Co. (Kan.) 33 Pac. 309. In the last-named case, speaking of the failure of a street railway to operate its road on a street upon which it had been built, it is said: "These privileges were not granted to the company solely for the company's benefit, but rather that the citizens of the plaintiff city might have the benefit of an improved mode of travel; that they might enjoy the benefits of one of the inventions of the age. * * * Having accepted the rights and privileges conferred by the ordinance, we think the duty rests on them, in favor of the plaintiff city and its citizens, to render them the service for which the privilege was granted. * * * A street railway may be compelled by mandamus to perform these duties." It must be kept in mind that the duties of corporations that can be enforced by mandamus must be those of a public nature arising by operation of law, either as embodied in the statute, the charter from the state, or the ordinance of a city; and it is the well-established doctrine that duties...