City of San Antonio v. Jones, 28 Tex. 19

City of San Antonio v. Jones

28 Tex. 19 | Tex. | 1866

Moore, C. J.

—The delay in transmitting the papers to the District Court of Guadaloupe county, in obedience to the order changing the venue, is satisfactorily explained by the affidavit of appellee’s counsel.

The motion is of a character which addresses itself mainly to the discretion of the judge to whom it is presented. Unless it is apparent that injustice has been done the appellant by the district court in the exercise of this discretion, or some legal principle has been violated, this court does not feel called upon to reverse the judgment, although a different conclusion, upon the facts presented in the record, might have been equally satisfactory to our minds, if the question had been presented as an original one for our determination.

*30It is alleged, in the amended answer of the appellant, that so much of the act incorporating the San Antonio and Mexican Gulf Railroad Company as authorized the city of San Antonio to become a stockholder in the corporation thereby created is unconstitutional and void. The general question of legislative power, to authorize municipal corporations to subscribe for stock in railroad companies, to borrow money on the faith and credit of the corporation, to pay the subscriptions, and to levy taxes to pay the loans, has been most elaborately discussed during the past few years in the courts of almost every State in the American Union. The constitutional provisions of the different States, in which the question has been adjudicated, are not believed to be materially dissimilar from our own. Yet, while the policy of such laws has been very generally questioned, and strong and cogent dissenting opinions have been expressed by many of the ablest jurists of the country, the courts of last resort have almost uniformly sustained the constitutionality of such laws. So unbroken has been the general current of decision, that it has been said by the well-known elementary writer and distinguished jurist Judge Redfield, though evidently himself inclining to a different opinion, (if the question were one of the first impression,) “That it is now too late to bring the matter into serious debate, certainly until a larger experience of the impediments attending the management of investments in railway companies by municipal corporations.” (Red. on Rail., 585n.) So far as we may judge from later decisions, the “ larger experience,” to which test this eminent judge has referred the question, has by no means tended to lessen the force of previous authority, which, as he says, was of too much weight to leave the point open for “ serious debate.” (See City of Bridgeport v. Housatonic R. R. Co., 15 Conn., 475; Goddin v. Crump, 8 Leigh, 120; Sharpless v. Mayor of Philadelphia, 21 Penn., 147; Moes v. City of Reading, Id., 188; *31C. W. & Z. R R. Co. v. Commissioners of Clinton County, 1 Ohio, 77; Steubenville & Indiana R. R. Co. v. Trustees of Forth Township, Id., 105; Griffith v. Commissioners of Crawford County, 20 Ohio, 622; Talbot v. Dent, 9 B. Monr., 526; Slack v. Maysville & Lexington R. R Co., 13 B. Monr., 1; Nichol v. Mayor, &c., of Nashville, 9 Hump., 252; Louisville & Nashville R. R. Co. v. County of Davidson, 1 Sneed, 637; Strickland v. Mississippi R. R. Co., cited 27 Miss., 209, 224; City of St. Louis v. Alexander, 23 Mo., 483; Police Jury v. Succession of McDonough, 8 La. Ann., 341; Cotten v. Commissioners of Leon County, 6 Fla., 610; Ryder v. Alton & Sangamon R. R. Co., 13 Ill., 516; Lumsden v. Cross, 10 Wis., 282; Knowlton v. Supervisors of Rock County, 9 Id., 414; Gilman v. The City of Sheboygan, 2 Black, 510.)

Although the general objection of unconstitutionality of any law passed by the legislature, authorizing subscriptions to stock in private corporations by county or city authorities, to be met by taxes levied upon the citizens and properly of such county or city, is presented by the appellant’s answer, the question has not been discussed by appellant’s counsel in this court. We have not, therefore, deemed it necessary to analyze the constitutional provision which is generally relied upon to impeach the validity of such laws, or to meet the arguments to which their opponents generally resort to sustain their conclusions.

While, however, it is not claimed by the counsel of the appellant, in this case, that the legislature may not confer upon a municipal corporation authority to subscribe for stock in a railroad company and levy taxes to pay its subscription, he insists that this has not been legally and constitutionally done by the act in question. To sustain this assumption, he relies upon the doctrine laid down and recognized by this court in the case of The State v. Swisher, 17 Tex., 441. The law of this case is unquestionably sustained by sound reasoning, as well as the high*32est authority, and the question decided by it is regarded by us as correctly and conclusively settled. But we cannot agree that it has any application to the case now before the court. It is not a legitimate construction of the act to incorporate the San Antonio and Mexican Gulf Railroad Company to say that the legislature intended, or did thereby confer, upon the citizens of the city of San Antonio any legislative power whatever. The legislature may grant authority as well as give commands, and acts done under its authority are as valid as if done in obedience to its commands. Nor is a statute, whose complete execution and application to the subject-mater is, by its provisions, made to depend on the assent of some other body, a delegation of legislative power. The discretion goes to the exercise of the power conferred by the law, but not to make the law itself.

The law, in such cases, may depend for its practical efficiency on the act of some other body or individual; still, it is not derived from such act, but from the legislative authority. Legislation of this character is of familiar use, and occurs whenever rights or privileges are conferred upon individuals or bodies, which may be exercised or not in their discretion. And if it may be left to the judgment of individuals or private corporations whether they will avail themselves of privileges conferred by the legislature, there is certainly no valid reason why the same may not be done with citizens of a town or district, who, as a class, are to be affected by the proposed act. (Williams v. Cormack, 27 Miss., 221; Dubuque County v. Dubuque & Pacific R. R. Co., 4 Iowa, 2, and cases referred to above.)

The next objection made to the judgment is, that the railroad company had forfeited its charter by its failure to construct any part of its road within the time prescribed for the completion of its first section of twenty-five miles. It may be inferred from the testimony, although it is not alleged in the answer, and the court may not in strictness *33be required to consider it, that* the coupons, upon which the suit is brought, were passed to the appellee subsequently to the period when, it is insisted, the charter had become null and void by the failure of the company to perform the required amount of work. Upon the hypothesis, however, that this question may be legitimately considered by the court, it is insisted for appellant, that the provision of the charter stipulating for the commencement and completion of sections of the road, is of the essence of the contract between the corporation and the stockholders. We cannot give our assent to this construction of the charter. This provision is not believed to have been supposed or intended by the subscribers as a part of the essence of the contract among themselves in organizing the corporation, nor as a matter of contract between the individual subscriber and the corporation as an aggregate. It was doubtless intended by the legislature, and understood by the subscribers, as a reservation and condition attached for the benefit of the public, to secure the speedy construction of an important public work, for the promotion of which many essential and valuable rights had been conceded. It was to protect the State from any future embarrassment, by reason of the privileges conferred upon this company, if the road should not be speedily, and in good faith, commenced and pushed forward to completion. The construction contended for by appellant would enable a discontented subscriber, by withholding the means upon which the company is dependent to perform the requirements of its charter, if not to insure its destruction, to escape, at least from many liabilities which he has assumed by becoming a member of it.

But it is also said, that if the commencement and completion of the first section of the road, as required in the original charter, was not an essential condition upon which appellant’s contract of subscription was based, yet the char*34ter became a nullity by its own stipulations, if these conditions were not strictly fulfilled.

To this it is answered, and we think correctly, that the provisions of the charter in this particular were enlarged and extended from time to time by subsequent amendments. It is not shown, it is true, that the applications for these extensions and amendments of its charter by the company were made with the consent of appellant, nor is it proved, with any considerable degree of certainty, that appellant, either directly or by implication, ratified or accepted them. But no objection has been taken to any of the provisions of the several amendments, except those extending the time within which the work was required to have been commenced and the different sections of it completed. And as these were for the benefit of the corporators, and a mere enlargement of their powers and privileges, they are presumed to have been obtained with their consent.

It is only fundamental alterations, such as work a change in the character of the company, or the purposes and objects to be attained by its organization, which operate as a release of the subscribers to the stock. (Benet v. Alton and Sangamon R. R. Co., 13 Ill., 504; Danbury and Norwich R. R. Co. v. Wilson, 22 Conn., 435.)

There is no error in the judgment, and it is therefore

Affirmed.