Tex. & the Miss. River, Canal, & Navigation Co. v. Cnty. Court of Galveston Cnty.
| Citation | 45 Tex. 272 |
| Court | Supreme Court of Texas |
| Decision Date | 01 January 1876 |
| Parties | THE TEXAS & THE MISSISSIPPI RIVER, CANAL, AND NAVIGATION CO. v. THE COUNTY COURT OF GALVESTON COUNTY. |
ERROR from Galveston. Tried below before the Hon. A. P. McCormick.
Suit for a mandamus, to compel the issuance of bonds of Galveston county, by virtue of a vote of seven hundred and four voters of that county, in July, 1872, in favor of a gratuitous donation or subsidy of five hundred thousand dollars to a company organized by voluntary association in February, 1872, “to be known as the Texas and Mississippi River, Canal, and Navigation Company.”
“For the purpose of constructing, operating, and owning a canal, and for the purpose of navigation by such vessels as the directory may deem proper, between the waters of Galveston bay and those of Sabine lake, and the tributaries thereof, by the most practicable route passing through the counties of Galveston, Chambers, and Jefferson in said State, and thence by the most feasible route to the navigable waters of the Mississippi river, to the end that steamboat navigation may be established between Galveston city and said river and its tributaries.”
It was alleged in the petition that under an act of the Legislature approved April 12, 1871, entitled “An act to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvement,” the plaintiff in error, on 25th June, 1872, made application by petition as required by said act, proposing to construct a canal from the waters of Galveston bay to Sabine pass, provided the county of Galveston would aid such enterprise by a donation of bonds of the county, as prescribed in said proposition; that the proposal was submitted, according to said act, to the qualified electors of said county, and special registration provided to ascertain the same at that time, under act of 30th of May, 1871; that the election was held, as recited in the minutes of the court of August 5, 1872, and 26th August, 1872; that the County Court received the report of the managers of the election, and decided, upon consideration, (August 26, 1872,) that said proposition had been accepted by more than two thirds of the registered voters, and that the same had carried. And thereupon said court attempted, according to the provisions of the act of April 12, 1871, to give practical effect to the proposition so voted for, by providing for the issuance of bonds of Galveston county, (according to the terms of said proposition,) to be delivered to plaintiffs in error as the proposed work was completed from time to time, and assessing and providing for the collection of a tax to meet the interest coupons, and provided a sinking fund to pay the same.
It was also alleged that on 26th of August, 1872, plaintiff undertook, by written obligation to said county, to commence and complete said canal, according to the terms of said accepted proposition.
Also, that “plaintiff in error” proceeded, in good faith, to perform his undertaking therein, and on October 11, 1873, notified defendant of the completion of five miles of said work, according to contract, and requested the appointment of a commissioner to examine, inspect, and report upon the same; that the commissioner was appointed, and on October 22, 1873, reported to defendant in error that said work had been completed fully, in accordance with said contract.
That on the 10th of November, 1873, plaintiff in error applied to defendant in error for the bonds provided for, for the completed five miles. The application was refused, no reason being assigned therefor; and thereupon the petition for mandamus was filed.
Defendant in error demurred to the petition and amendment of plaintiff, and stated several grounds of special exception, which were sustained. To correct the supposed error in this ruling the writ of error was sued out.
The grounds of special exception were substantially as follows, viz:
1. Plaintiff was not a corporate body at the time the proposition was submitted and the contract made, nor when suit was filed.
2. The law of May 30, 1871, providing for special regis tration is contrary to the Constitution, and void; and the proposition of plaintiff in error was submitted to voters qualified according to that registration.
3. The act of April 12, 1871, under authority of which the proposition was made and (as alleged) accepted, is unconstitutional and void--in this, that the Constitution, art. 12, sec. 32, contemplates that the amount of tax to be assessed and levied on internal improvements should be the precise question submitted to a vote of qualified electors, and not whether the county will aid a named enterprise in a gross amount upon stated terms.
4. That the undertaking upon the part of the county of Galveston was a “ nudum pactum,” and therefore void.
5. That the contemplated improvement not being confined exclusively to the county of Galveston, is not an improvement authorized by law to be aided by the county of Galveston.
6. That the County Court of Galveston county subsequently changed upon its minutes the recitations and orders of August 26, 1862, to wit, on the 31st of January, 1873, and that such rescission was the judgment of a court of competent jurisdiction, and is not appealed from.
7. That plaintiffs' petition is vague and uncertain, stating nothing in fact upon which he can claim anything at law.
On the 2d of June, 1873, the Legislature passed (Special Laws, p. 744) “An act to promote the speedy construction of a canal between the waters of Galveston bay and Sabine lake, and in aid thereof,” the first section of which provided that the Texas and Mississippi River, Canal, and Navigation Company of Galveston, incorporated on the 17th of March, 1872, under and in accordance with the provisions of the act concerning private corporations, approved December 2, 1871, shall be and is hereby invested with the right of locating, constructing, owning, operating, and maintaining a canal and line of inland water communication, commencing at Hanna's Reef, on the east bay of Galveston bay, and thence by the line that may be found best and most practicable for a connection at Sabine lake, at or near to Sabine city--said canal to be not less than fifty feet wide and six feet deep; and said company shall have the right to cross all public highways, and to deepen, straighten, or otherwise improve the navigation of all streams across or along the course of which it may be necessary to construct said canal, etc. * * * Provided, That nothing contained in this act shall in any wise validate or invalidate any subsidy, real or pretended, from the county of Galveston.”
Said act conferred the right of appropriating public or private property on compensation, etc., and gave a land grant to the company. A more precise statement of the case is not necessary.
Flournoy, Sherwood & Scott, and T. N. Waul, for plaintiff in error.
I. The absence of the enacting clause is directory to the Legislature, and without negative words, does not render the act void. (Cape Girardeau v. Riley, 52 Mo., 424.; St. Louis v. Foster, 52 Mo., 513; Miller v. State, 3 Ohio, N. S., 483; People v. Superv. of Chenango, 8 N. Y., 328; Rex v. Loxdale, 1 Burr, 447.)
II. That sec. 27, art. 5, of the act “concerning private corporations,” authorizes the formation of a private corporation, to dig a canal for the purposes of navigation.
The rule is universal that when a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and, consequently, no room is left for construction. (Cooley on Con. Limitation, 55; People v. Purdy, 2 Hill, 35;Benton v. Wickwire, 54 N. Y., 226;Denn v. Reid, 10 Peters, 524;Bosley v. Mattingly, 14 B. Monroe, 89;Newell v. The People, 7 N. Y., 97;Enckling v. Simmons, 28 Wis., 272; Lacey v. Moore, 6 Coldw., (Tenn.,) 348.)
If in the same act there be one clause which applies to a particular case, and another which is couched in general terms, the former shall not restrain the signification of the latter. (Dwarris on Statutes, 659; Gregson v. Harrison, 2 Term R., 164; Statute 19, Geo. II, ch. 37, vol. 20, 511.)
III. That the contract entered into between plaintiff and defendant is binding on the county of Galveston.
When a party contracts with what assumes to be a corporation, he is not permitted to deny its existence as a corporation at the date of the contract, or to allege any defect in its organization as affecting its capacity to contract or sue, and such objections are only available by the State. (Cochran v. Arnold, 58 Penn., 405;Wright v. Shelby R. R., 16 B. Mon., 4;Cathcart v. Robinson, 5 Peters, 280; Palmer v. Lawrence, 3 Sandf., 161; McBroom v. Lebanon, 31 Ind., 268;Fay v. Noble, 7 Cushing, 188;Foster v. Walton, 5 Watts, 378,Steam Navigation Co. v. Weed, 17 Barb., 378.)
IV. The act of June 2, 1873, extending the privileges and recognizing the plaintiff, had the effect to merge or consolidate the original corporation or partnership (if not previously incorporated) with the new corporation, by which a new entity is created, to which pass the rights and obligations of the old entity.
V. In conclusion, the contract made by plaintiff, with the county of Galveston was binding upon both parties, whether the plaintiff was a corporation or a partnership. The plaintiff took the risk of its ability to complete the work according to the contract; and if any doubt of its ability had existed, that doubt was removed by the act of the Legislature of June 2, 1873, recognizing their former charter and bestowing all the power and franchises necessary not...
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