Statement of the Case.
This suit was brought by the state of Texas, through its Attorney General, in the district court of Travis county, on the 7th of July, 1911, against appellant for a writ of mandamus or mandatory injunction to compel it to construct its line of railway through the town of Sherwood, the county seat of Irion county, and establish and maintain a depot therein, and for a penalty of $5,000 for having willfully failed and refused to do so, alleging that said company had constructed its road within less than three miles of said town (which is unincorporated, containing about 400 inhabitants) without passing through the same, and without establishing and maintaining a depot therein, as required by the Constitution and laws of this state, the citizens of said town having tendered to it, prior to the construction of its road, a practicable right ,of way through its limits and sufficient grounds for ordinary' depot purposes therein; further alleging that there were no natural obstacles to prevent said railroad from passing through same, such as streams, hills, or mountains, and that the state of Texas and the people thereof have an interest in and right to have said company obey and comply with the provisions of the Constitution and laws of this state, and that they have an interest in having a depot located and maintained in said town for the convenience and transaction of their business with the county officials of said county, and in attending to and transacting business in and with the various courts in and for said county, and for receiving and delivering passengers and freight thereat, and that such failure on the part of appellant to comply with the Constitution and laws of the state in this respect will subject the people of the state to great inconvenience and expense that they would not otherwise have been subjected to if appellant should construct a railway through said town and establish and maintain a depot therein.
Prior to the institution of this suit, certain of the citizens of Irion county, residents of Sherwood, instituted a suit in the district court of Tom Green county against appellant, which is still pending therein, to compel it to construct its roadway through said town of Sherwood, and establish and maintain a depot therein, the allegations of the petition in which ease are, in many respects, similar to those in the instant case, and the penden-cy of which suit is pleaded in abatement hereof. See Felton v. Kansas City, Mexico & Orient Railway Company,
(a) The four years’ statute of limitation.
(b) Natural obstacles preventive of the construction of the road nearer to the town of Sherwood.
(c) That the matter of the location of the road had been settled between the railway company and the citizens of Sherwood by virtue of the contract hereinbefore referred to, and specially pleading such contract in bar of this action, and that the citizens of Sherwood, and the town of Sherwood, and the state, through them, was estopped to maintain this suit by virtue of said contract, and of the fact that the railway company had acted thereon and had expended large sums of money in the construction of its road, which would have been lost if the route had been changed when it first had any intimation that the route, as located, was not satisfactory to some of the citizens of Sherwood.
(d) That the railroad company had complied with all of its iegal and constitutional obligations by securing a right of way through the corporate limits of the town of Sherwood while it was incorporated, and were engaged in the construction of its railroad when the corporation was abolished, and that its legal status had already been fixed and could not be changed by the ex parte action of such town and its citizens in abolishing its corporation.
(e) That the citizens of the town of Sherwood and such town having for a long time known the location of the line of the road and that the road was being constructed thereon, and having procured and tendered to the railroad company the identical right of way upon which the road was constructed, and knowing that the railroad company was relying on this contract, and was expending large sums of money in the construction of its railroad on this located line, had. been guilty of laches in asserting any right, and were each and all estopped to demand the construction of the road at any other place, and that the state being in this case merely a formal party, and having instituted this suit for the benefit of Sherwood and its citizens, was also estopped.
(f) That no tender of right of way or depot grounds had ever been made to the railroad company prior to the institution of this suit.
(g) That, at the time of the institution of this suit, the railroad had already been constructed past the town of Sherwood, and that the suit came too late, and that to build ah additional line to Sherwood would not be justified by the traffic to be obtained therefrom, and the cost of construction and maintenance thereof would be burdensome and an improper interference with the carriage of interstate commerce, in which the road was engaged.
The ease was tried before the court -without a jury, and, during the progress thereof, appellant company was placed in the hands of receivers by an order of the United States District Court for the Northern District of Texas, made on the 9th day of March, 1912; and, before the trial of the case had concluded, appellant filed its motion to dismiss this suit or to suspend it in order to make the receivers parties, which motion was overruled by the court And the trial of the case proceeded, which resulted in the court’s overruling all the contentions of appellant, and rendering judgment .in favor of the state •for' the sum of $2,500 penalty, and further ordering that a permanent and final writ of mandatory injunction should issue, compelling appellant, within 30 days from the date of such order, to survey, locate, and establish a reasonable, feasible, and practicable route for its right of way into and through said town, and to survey and locate a reasonable and practicable depot site for ordinary depot purposes within said town, and, as soon as the same should have been done, to give notice in writing to the Attorney General of the state of that fact, and of the completion of the said survey, location, and establishment of said right of way and depot site in said town.
It was further ordered by the court “that the. citizens of said town of Sherwood be, and they are hereby, allowed and granted 90 days from and after service of notice on the Attorney General, as aforesaid, of the completion of the survey, location, and establishment of said right of way into and through said town and said depot site, and sufficient grounds for ordinary depot purposes, to secure the grant to the said defendant Kansas City, Mexico & Orient Railway Company of Texas, free of any costs to the said defendant, the right of way through the limits of the said town of Sherwood, as hereinbefore fixed and established by the court, and sufficient ground for ordinary depot purposes within said town, which said right of way shall b.e secured by the citizens of said town, or any number of the citizens of said town, who may see proper to do so by securing deeds and grants therefor in due and proper form, conveying to the said defendant such right of way through the limits of said town, and sufficient ground for ordinary depot purposes, and shall tender said grants and conveyances to defendant by giving notice in writing to that effect and by making said tender of said grants and conveyances to defendant or to its attorneys of record, or any of them, in this case, which notice and tender may be made by any citizen of said town of Sherwood or his agent or attorney, or by the Attorney General of the state of Texas; and, in the event such deeds and grants, or any part thereof, cannot be *565 secured by voluntary conveyances from the owners of any lands over which the same may pass, then the said citizens of said town of Sherwood, or any number of them, shall execute, or cause to be executed, a good and sufficient obligation, to be adjudged of and approved by the judge of this court, payable to the defendant railway company, conditioned that such citizen or citizens will, on demand, pay and reimburse defendant for any and all sums of money paid by defendant in procuring and securing said right of way and depot grounds into and through the limits of said town of Sherwood, as herein found and fixed by this judgment, which sums shall include all reasonable damages, costs, expenses, and attorney’s fees which shall have been paid by defendant in the necessary prosecution of such condemnation proceedings, which said obligation shall be executed by said citizen or citizens, as principal, together with sufficient sureties, which sureties may or may not be residents or citizens of said town of Sherwood; and, when said obligation will have been executed, the same, together with such grants of right of way and depot grounds as may have been secured, shall be tendered to defendant by giving notice thereof in writing to the defendant as (or) to its attornesrs of record, or any of them, in this case, which said notice and tender of obligation and grants aforesaid, if any, shall be made within the period of 90 days, as hereinbefore provided for, and said notice and tender may be made by any citizen of said town of Sherwood, his agent or attorney, or by the Attorney General of the state of Texas; and, when said notice and tender of said obligation shall have been given and made as aforesaid, then the said defendant, Kansas City, Mexico & Orient Railway Company of Texas, is hereby ordered, directed, required, and compelled to immediately institute, or cause to be instituted, in the manner provided by law, condemnation proceedings in accordance with the provisions of the laws of this state for the purpose of securing such right of way and depot grounds’ as have not been procured by voluntary conveyances as aforesaid, and to diligently prosecute such condemnation proceedings, and to do and perform all things required by law or necessary in order to secure said right of way and depot grounds in said town by said condemnation proceedings aforesaid, including the payment of all damages awarded herein and costs and expenses necessary and incident thereto; and the citizens of said town of Sherwood, or any number thereof, shall and they are hereby required to reimburse and pay to the said Kansas City, Mexico & Orient Railway Company all costs and expenses necessary and - reasonable in the prosecution and procurement of said right of way and depot grounds by said condemnation proceedings aforesaid, together with all reasonable attorney’s fees therefor, and that said citizens shall pay all costs and expenses incident thereto, and to the prosecution of said condemnation proceedings, including any' and all awards of damages for such right of way and depot grounds through said town as may be made in such condemnation proceedings; and said citizens of said town of Sherwood are hereby ordered and required to save and keep harmless the said defendant railway company from any and all such costs and expenses, as well as damages, incident to the procuring of such right of way and depot grounds aforesaid, and all of which shall be held to be included in the obligation of said citzens as hereinbefore provided for.” From which judgment this appeal is prosecuted.
The following findings of fact and conclusions ' of law were filed by the court, upon which said judgment was predicated:
“Conclusions of Fact.
“The court finds and concludes from the evidence that the following facts were established, viz.:
“First. That the town of Sherwood is an unincorporated town, situated on the east side of Spring creek, in Irion county, Tex., and is now, and has been continuously since the organization of said county, the county seat of said county, and that its boundaries and location are easily ascertained on the ground by the location, collection, and aggregation of the houses constituting said town, and /which includes the originally recorded plat of said town, as well as the adjacent lots and blocks on which are situated houses in said town, and all of which is fully shown and described on the map of said town set out and included in the judgment in this cause, and recorded in the minutes of this court, and which map shows the outside boundaries of said town.
“Second. That the defendant railway company has constructed and built, and now owns, maintains, and operates, its line of railroad up and along the west side of Spring creek and passing within a distance of less than 3 miles of said town of Sherwood, to wit, about 1% miles from said town, but does not pass through said town, and defendant has not established and is not maintaining a depot in said town.
“Third. That there are no natural obstacles, such as hills, streams, or mountains preventing the defendant from building and constructing its line of railroad into and through said town of Sherwood, or from establishing and constructing and maintaining a depot in said town, but that defendant can survey, locate, establish, construct, and maintain a feasible and practicable route for its railroad through said, 'town, and can establish, construct, and maintain a depot in said town at a convenient .and accessible point therein. :
*566 “Fourth. That the citizens of said town are now, and have at all times since the location of said defendant’s railroad in said county been, ready, able, and willing to grant to the defendant railway company a right of way through the limits of said town, and sufficient grounds for ordinary depot purposes in said town, free of any cost to the defendant on whatever route through said town defendant might select.
“Fifth. That defendant can survey and locate a reasonable and feasible and practicable route for its right of way and roadbed through the limits of said town, and sufficient grounds for ordinary depot purposes in said town, and can do so within 30 days, and which is a reasonable time therefor.
“Sixth. That, after defendant shall have surveyed and located its said right of way through said town and depot grounds therein, the citizens of said town of Sherwood can secure a grant of the said right of way and depot grounds within 90 days thereafter, and which is a reasonable time therefor, unless the same or some part thereof shall have to be secured by condemnation proceedings, and in such case said citizens can ascertain that fact and execute an obligation to the defendant to hold it harmless from any cost or expense incident to such condemnation proceedings, and that they can do so within said period of 90 days aforesaid.
“Seventh. That after said grant of said right of way and depot grounds shall have been secured, as aforesaid, defendant can construct and build and put in operation its said railroad through said town, and said depot in said town, and can do so within 90 days after said right of way and depot grounds shall have been granted and secured by voluntary conveyances or by condemnation proceedings, as hereinbefore provided for, and said time is reasonably sufficient therefor.
“Eighth. That defendant has heretofore surveyed, located, established, and constructed its railroad within three miles of said town of Sherwood, the county seat of Irion county, without passing through said town, and without establishing and maintaining a depot therein, and that defendant made no efforts to survey, locate, establish or construct its railroad through said town or a depot in said town, although it could have done so at a reasonable cost; but defendant purposely and intentionally constructed its railroad passing said town and within the distance of less than three miles therefrom, and established a station at Mertzon, a new and rival town, about three miles away from said town of Sherwood.
“Ninth. That had defendant surveyed, located, established, and constructed its railroad through said town of Sherwood, instead of where it did construct the same, its said line of railroad would have been about seven-tenths of one mile shorter than its present line, and the cost of expense and maintenance and saving in operation of the line through Sherwood will substantially offset any difference in the cost of construction between said line through Sherwood and defendant’s present line, and the difference, if any, between the cost of construction, maintenance, and operation of the two lines is so slight and inappreciable as to be not unreasonable.
“Tenth. That defendant has never surveyed or located any route for its railroad through said town of Sherwood, or any point for a depot in said town, and never gave the citizens of said town, or said town, an opportunity to grant it a right of way through1 the limits of said town, and sufficient grounds for ordinary depot purposes, although said town and said citizens were ready, able, and willing to do so at all times.
“Conclusions of Law.
“The court concludes, as a matter of law, that by article 10, § 9, of the Constitution of the state, and by Revised Statutes, art. 4491, the defendant, by constructing its line of railroad within three miles of the town of Sherwood, which is the county seat, was required to pass through said town and establish and maintain a depot therein, there being no natural obstacles preventing, and that it was the duty of the defendant to have made a reasonable effort to have located its line through said town in order to have given the citizens of said town a reasonable opportunity to grant it the right of way through the limits of said town and sufficient grounds for ordinary depot purposes, and that, by reason thereof, defendant has willfully failed and refused to perform a duty enjoined upon it by law, and has subjected itself to the penalties provided for in article 4OT6, Revised Statutes of the state of Texas, as amended by chapter 100, Acts of the Twenty-Seventh Legislature, p. 265, and that, unless compelled to construct its road through said town and maintain a depot therein, the defendant will not do so, and the writ of mandatory injunction is therefore awarded to compel the performance of this legal duty on the part of the defendant, and the penalty of $2,500 is assessed against the defendant for a willful violation of the laws of this state and failure and refusal to perform a duty enjoined upon it by the laws of this state.”
Opinion.
Article 4491, Sayles B. S., is a literal copy of the above provision. It appeared that the suit pending in Tom Green county district court was brought by and at the instance of certain citizens of Sherwood, and merely sought to compel said railway company to conform to said constitutional requirements ; it is therefore contended by appellee that since the parties to this suit and to that are not identical, and that the cause of action asserted therein and that asserted here are not the same, and that the relief sought in the one is different from that sought in the other, said plea was not well taken; citing Langham v. Thomason,
It is said in 1 Cyc. that: “It is a general principle of law that the pendency of a pri- or suit for the same thing, or, as is commonly said, for the same cause of action, between the same parties in a court of competent jurisdiction, will abate a later suit. The principle upon which pleas of another action pending are sustained is that the law, which abhors a multiplicity of suits, will not permit a debtor to be harassed and pressed by two actions to recover the same demand, where the creditor can obtain a complete remedy by one of them.” Page 21. “To sustain the plea of a former suit pending, it must appear that the subject-matter and the relief sought in the second suit are the same as in the first suit. A plea in abatement of another action pending will fail where there is a substantial difference in the relief sought.” Id. pp. 27, 28. “If the whole relief sought in the second suit is not attainable in the first, or if the relief which may be given, or the remedies available in the second suit, are more extensive than can be attained in the first, a plea to the second suit of the pendency of the first is not good.” Id. p. 29.
In Water Co. v. City of Palestine, supra, Chief Justice Brown, in discussing this subject, says: “This suit was instituted to revoke and set aside the contract between the city of Palestine and the Palestine Water & Power Company, as well as to annul the ordinance which granted to the Water & Power Company the right to occupy its streets, and the state court thereby acquired jurisdiction of the subject-matter before the receiver was appointed by the United States Circuit Court” — holding that it was not necessary to make the receiver a party thereto.
“The mere appointment of a receiver does not suspend the right of action against a corporation itself, unless the proceeding in which the receiver is appointed has resulted in dissolving the corporation, or unless such proceedings have been commenced for the purpose of securing a judicial dissolution of the corporation, or unless the court in which it is commenced enjoins the prosecution of actions against the corporation, pending the determination of the question whether it is to be dissolved. The reason for this conclusion is that the existence of the corporation is not destroyed or even suspended by reason of its property or franchises being held in custody by a court of equity, though the seizure of its property may dispossess it of the means of defending suits, and make it inequitable to allow them to be prosecuted against it.” Section 6894, 5 Thompson, Corp.
We think the cases above cited are suffi *568 cient authority for our holding that the court did not err in overruling appellant’s plea in abatement, based on appointment of the receivei & since the filing of this action.
In the first case cited, Chief Justice Gaines used the following language: “It is a well-settled doctrine that a corporation may be compelled by writ of mandamus to perform a duty imposed by statute. The duty need not be expressed; it may be implied. Clearly, when it appears by fair implication from the terms of its charter, it is as imperative as if the obligation were expressed.” The only exception to this rule seems to be as stated by Judge Gaines that where the charter confers a mere permissive right to do a thing, as distinguished from the command to do so, such corporation cannot be compelled by mandamus to perform such permissive obligation.
While it cannot be doubted in the present case that the town or its citizens, as held in Felton v. K. C., M. & O. Ry., supra, would have the right to' institute the suit to compel the railway company to comply with its constitutional obligation, yet it seems to us that there can be no question but what the state would have the absolute right also to enforce such obligation against the company,, in- the event of a failure or refusal on its part .to comply therewith. The language of the Constitution is a direct and positive command, requiring the company to pass through any .county seat and establish a depot therein, where it runs within three miles thereof, unless prevented by natural obstacles, or unless the citizens should fail to grant the right of way through its limits, and furnish sufficient grounds for ordinary depot purposes. The state is certainly interested in the enforcement of its Constitution and laws; and a failure on the part of the company to comply with its mandates justifies, in our judgment, the action taken by it.
In the case of the State of Mississippi v. M., J.
&
K. Ry. Co., supra,
Believing that the state had the right to prosecute the suit under the law, we overrule each of these assignments.
We believe that appellant’s contention is not sound and should be overruled, because, first, we do not believe that it' was within the power of said mass meeting of citizens to waive the constitutional and statutory requirement on the part of said railway company. Besides this, even if they had such power, then neither said citizens nor the state could be bound thereby, in the absence of a showing that the company had performed the obligations imposed by the contract. It clearly appears that said depot was never located as contemplated by Said contract; and it cannot be urged that the omission to incorporate this feature in the contract would justify the company in failing to establish a depot, as contemplated by the agreement, because it had knowledge of such resolution and was a party thereto, for which reason the committee appointed by said mass meeting was without authority to bind such meeting by contract, not embracing the entire proposition submitted to and passed upon by it. The railway company having failed to perform its part of such contract, we think the citizens of the town were not bound thereby. At any rate, the state was not a party to such agreement, and is not restricted in its rights thereby.
The -Constitution of Mississippi, § 187, provides that: “No railroad hereafter constructed in this state shall pass within three miles of any county seat without passing through the same, and establishing and maintaining a depot therein, unless prevented by natural obstacles :• Provided such town or its citizens shall grant the right of way through its limits, and sufficient grounds for ordinary depot purposes.” Construing said provision, the Supreme Court of said state in the case of State of Mississippi v. M., J. & K. Ry. Co., supra,
We overrule the thirty-seventh assignment, insisting that the writ should not issue for the reason that the evidence showed that the company was not financially able to construct said road into the town of Sherwood, because the contrary, we think, is abundantly established by the record.
Finding no error in the judgment of the trial court, the same is in all respects affirmed.
Affirmed.