Houston & Texas Central Railway Co. v. Texas

after stating the case, delivered the opinion of the court. •

The Supreme Court of Texas held in Galveston, Harrisburg & San Antonio Railway Company v. Texas, 89 Texas, 340, that, conceding that section six of article ten of the constitution of 1869 did .not repeal prior laws granting lands in aid of the defined lines of existing -railroad companies, the section did operate to cut off the right to earn lands by the construction of lines not authorized until after the, provision took effect. We have just considered that case, and expressed the opinion that the constitutional provision as thus enforced involved no infraction of the Constitution of the United States.

In other words, the state courts have applied to the road from Brenham to Austin the same rule laid down as to new lines authorized-to be constructed, for the first time, after-the constitution of 1869 was adopted. We cannot concur in this view, but,, on the contrary, are of opinion that the constitutional provision as thus enforced impairs the obligation of the contract between the State and the company and cannot be sustained.

The Houston and Texas Central Railway Company, then styled the Galveston and Red River. Railway Company, was authorized by it's act of incorporation not only to.construct the main line therein specified, but, by its second section, such branches as it should deem expedient; and by the fourteenth section of the special act of February 14,-1852, eight sections of land were granted to the company for every mile of railroad it should construct, no distinction being made between branch and main lines. ' By section 2 of the special act of

The general act of January 30, 1854, granted to all railroad companies constructing a section of twenty-five miles or more of railroad, sixteen sections of land for every mile of road so constructed and put in running order; though by section 12 it was provided that any company then entitled to a grant of eight sections of land per mile, which should accept the provisions of the act, should not be entitled to receive the grant thereby made .for any branch road; This company was then entitled to eight sections per mile, but the special act of January 23, 1856, supplementary to the several acts incorporating the company, expressly extended the rights, benefits and privileges óf the general act of January 30, 1854, to the company, subject to certain conditions not material to be enumerated, and with the limitation as to' branch lines that the company should “ yield all general branching privileges except such as are expressly granted by the provisions of its charter to certain points,” and requiring it to spend oh the branch only the money subscribed for the branch, and oh. the trunk only the money subscribed therefor.

By section two of the original act of incorporation' general branching privileges had been conferred, and by section two of the special act of February 7, 1853, express authority to construct a branch to the city of Austin. It would seem plain then that section five of the act of January 23, 1856, distinctly referred to the right to construct this particular branch, and so preserved it that the benefits of the act of January 30, 1854, were extended to that branch and its construction, and no other. In other words, all branching privileges except for the Austin line were yielded in accepting the benefits of the act of 1854, but as to that expressly authorized branch the right to construct it was preserved with the benefits accorded to its construction. The act of February 4,1858, repeated the assurance of the benefits of the act of 1854.

But it is said that by the sixth section of the act of 1856

This legislation'secured' the construction of the branch to 'Austin, the capital of the State, an obvious necessity, and especially as that important point was then without any line •of railway Avhatever.

Counsel for the State contended that the. act granted lands for the construction only of the main line and not of the Austin line. , ■ The last clause of the third section of the act was: “ And said railroad company shall construct their.road in the-line heretofore prescribed- by ‘An act for the relief of the Houston and Texas Central Bail way Company,’ approved February the 8th, --1861.”

This fixed the route of the main line by Dresden and Dallas, to the vicinity of Preston instead of Coffee’s station. The route of the Austin line had been provided for by the act of February 7, 1853, and there was evidently no occasion to-change it.

But it does not follow that because of this definition of. the main line in the third section the grant in the first section of the act of September 21,' 1866, should be confined to that line.

The company already had a grant of sixteen sections per mile for its main line under the general act of January 30,1854, and there/was nó controversy over that, nor any need of further legislation in that regard when this act was passed. As-to the branch line there might be dispute, and, furthermore, the right to repeal the grant was reserved in the acts of January, 1856, and February, 1858; and it may well be assumed that the object of the act of September 21,1866, was to remove any doubt on the subject of the grant for the-Austin line and remove the danger of a possible repeal. We are the more constrained to this conclusion by the language of the subsequent general act of November 13, 1866, “that all tap roads over 25 miles long shall be entitled.to the benefits of this act,” which modified the policy as to branch roads indicated in the act of 1854.

We find then thát the company was granted by the State •prior to the adoption of the constitution of .1869, sixteen sections of land per mile for the construction of the -Austin line by the special act of January 23,-1856, and by the special act of September 21, 1866. And the rights of the company to the lands granted were preserved by extensions of time; as occasion required, within which to comply with conditions respecting the rate of construction. By the act of September 1, 1856,

Before the constitution of 1869 was adopted, the company had acquired the Washington County Railroad, and the convention which framed that instrument on August 29, 1868, ratified and confirmed the purchase of that road, and declared that the Washington County Railroad was thereby made and declared to be a branch of the Houston- and Texas Central Railroad, to be controlled and managed by the Houston and Texas Central Railway Company, with the right to extend the road from Brenham to Austin by the most eligible route.

The company had completed and had in operation five sections of twenty-five miles each of its main line, and by the acquisition of the Washington County Railroad, had in operation that part of the Austin branch extending from the junction of the main line at Hempstead to Brenham directly toward Austin.

Thus it is seen that the company had been granted sixteen sections of land per mile for the construction of the Austin branch as well as the main line-; that it had accepted the grant; and' had commenced to earn :it, and had actually acquired the right to earn it, by the construction of an important part of the line which the State by the grant intended to promote, before the adoption or acceptance of the constitution.of

We do not understand the state courts to have decided that the purchase of the Washington County road was ultra vires, but to have held that the construction of the line from Brenham to Austin was ah independent enterprise authorized for the first time by the act of August 15, 1870, and being a new and additional line no land grant could be claimed for it because the constitutional provision was then in force.

In our opinion, however, if the Washington County road was lawfully acquired by the Houston and Texas Central Railway in 1868, it became as much a part of the Austin branch as if it-had been constructed by the company, and its subsequent completion to Austin placed that part of the line from Brenham to Austin in the same situation as if the entire line from Hempstead to Austin had been in fact so constructed. And this would have been so if the company had built ninety-five miles from Hempstead towards Austin, and then lawfully obtained twenty-five miles of existing road to complete the branch. Of course the company was not entitled to a land grant for the twenty-five miles from Hempstead to Brenham, nor is any such claim made, but that twenty-five miles became by. the purchase a part of the branch with like effect as if. originally part of it, and to treat the completion of the branch as a new and independent enterprise we cannot but regard as inadmissible in view of the facts. For this twenty-five miles had been purchased; was controlled and operated ; and existed as a part of the company’s Austin branch in fact.

These ordinances were not so submitted, -and we are not called on to express any opinion as to whether in view of the anomalous circumstances under which this particular convention met; the previous decisions of the Supreme Court of the State; or any other considerations, they, or either of them, could be regarded- as valid.

For irrespective of that, the act of August 15, 1870, expressly recognized and ratified the purchase of the Washington railroad and the State could not deny the validity of that which it had expressly validated, if otherwise open to,question.

In Galveston Railroad v. Cowdrey, 11 Wall. 459 , referring to a mortgage executed by a railroad'company in Texas when there was no' statute of that State expressly authorizing railroad companies to mortgage their roads as such, Mr. Justice Bradley,-speaking for this court; said : “ Without examining

It appears to us that this purchase comes within the rule thus expressed, and that if -there had originally been objection it was technical merely and removed by the act of 1870.

Now the latter act authorized no new line nor made any new grant of lands to which, no' previous right existed, nor-restored lands which, had been- forfeited. If ground of forfeiture had accrued by reason of failure to complete as rapidly as required, it had not been enforced, and if - outstanding was waived by- the act.

If there had been a failure to construct in .time so that a forfeiture would have been justified, no. such forfeiture .was declared by any judicial pi’oceeding, or by any legislative action equivalent to office found. St. Louis, Iron Mountain &c. Railway v. McGee, 115 U. S. 469 ; Bybee v. Oregon & California Railroad, 139 U. S. 663 ; Galveston, Harrisburg &c. Railway v. State, 81 Texas, 572.

And the executive officers of the State, charged with the ■ administration of the laws granting lands to railroads, and vested with jurisdiction to determine' .the facts, had ascertained and determined the facts here,-and issued the certificates because in their judgment -the road had been completed' in accordance with the law.

No argument was máde that any ground of forfeiture could be availed of in the case, nor was any such point ruled by the Court-of Civil Appeals, or by the Supreme Court.

The judgment of-the Court of Civil Appeals may have been rested in part on the' view that the constitution of 1869 repealed all laws granting lands to railroad companies regardless of the acceptance of such laws and the construction of' the lines of road thereunder.

The Supreme Court proceeded on the ground.that the road from JBrenham to Austin was not authorized until after 1869

From what we have said it will be perceived that we are unable to accede to either of these propositions.

In our opinion it results from the legislation and the facts that the company had the right to construct the line to Austin ■and earn sixteen sections, per mile by so doing, prior t.o 1869 ; that by the acceptance of its charter and the subsequent legislation, and by the completion of an important part of its road before the adoption of the constitution of 1869, the company had acquired a vested right to the land grant; that the purchase of the Washington County road must be regarded as valid, and that thereby that road became part of the Austin line in operation as such before 1869; that the extension of the branch from Brenham to Austin cannot properly be treated as a new and independent line, and that there therefore was a contract between the State and the company in respect of lands earned by the construction thereof.

It follows that section 6 of Article X of the constitution of Texas as given effect by the state courts impairs the obligation of the contract and deprives the company of its property without due process of law.

Argument was also urged on behalf of defendant in error that the particular lands sued for are situated in what is known as the Pacific reservation, being a reservation for the benefit of the Texas and Pacific Railway Company, created by a special act of May 2, 1873, and hence, that though the ■certificates were valid, they were not located, as the' law required, on unappropriated public domain.

This question was not determined by either of the appellate tribunals, but, on the contrary, their judgments rested distinctly on the invalidity of the certificates for reasons involving the disposition of Federal questions. We must decline to enter on an examination of the controversy now suggested on this point.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.