Felton v. Kansas City, M. & O. Ry. Co. , 1912 Tex. App. LEXIS 9 ( 1912 )

Conditions are such as to preclude extended discussion in detail of the numerous questions discussed in the briefs filed by the able counsel of the respective parties in this case. Careful consideration of the arguments and of many of the authorities cited has been given, and we have reached the conclusion that the trial court committed error in sustaining the demurrer and exceptions to the plaintiffs' petition and dismissing the suit. Counsel for appellee have cited cases which hold that a private citizen cannot maintain an action on account of the unlawful removal of a county seat, although such removal may cause a depreciation in the value of such citizen's property located in the city or town from which the seat of county government is unlawfully removed; and it is urged that the principle upon which those cases are founded is applicable to the instant case and fatal to the plaintiffs' suit. We are of opinion that the analogy is not such as to render the cases referred to controlling authority in this case. While railroads are public highways, and the corporations which operate them are sometimes denominated quasi public corporations, in law they are private corporations; and while they may be properly denominated public service corporations, they are in fact no part of the government, national, state, county or other subdivision. It is true that such companies perform functions which the government might, if it saw proper, perform itself, but when such functions are performed by a private corporation, granted a charter by the government for that purpose, they are not being performed as a part of the government nor by the government's officers and agents. Therefore when it is held that a private citizen cannot maintain an action because of the misconduct of public officers in wrongfully exercising their functions at a place different from that prescribed by law, it does not follow that if a railway company is required by law to construct its road into a particular city or town, a private citizen can have no remedy for a breach of that obligation.

Section 9 of article 10 of the Constitution of this state reads as follows: "No railroad hereafter constructed in this state shall pass within a distance of three miles of any county seat, without passing through same, and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills or mountains; provided such town or its citizens, shall grant the right of way through its limits and sufficient ground for ordinary depot purposes."

It is upon this provision of the fundamental law of the state that appellants found their right to maintain this action, and this calls for a construction of that provision, and a determination of the obligations it was intended to impose, and the rights it was intended to secure. No such provision was contained in any former Constitution of this state, and it must be supposed that this change was made in order to prevent what was an existing or anticipated evil. Can any one doubt that the framers of that provision of the Constitution, and the people who by a referendum vote adopted it, intended to so frame the law as to prevent railroads from passing within three miles of county seats without going through the same, if they were furnished the right of way, etc., and if natural obstacles would not prevent? As to the obligation it would be difficult to select language clearer and stronger than the language used. "No railroad hereafter constructed in this state shall pass within a distance of three miles of any county seat without passing through the same," etc., is language so plain, clear, and distinct as to admit of but one construction. Of course, that which follows shows that the obligation placed upon those who might thereafter construct railroads was not an absolute and unconditional obligation, but was dependent upon the nonexistence of preventive natural obstacles, and the willingness of municipalities, or the citizens thereof, to furnish the right of way through such municipalities and sufficient ground for ordinary depot purposes.

But it is contended in argument on behalf of appellee railway company that the constitutional provision referred to was intended for the benefit of the government, state, county or town, and not for the benefit of any private citizen. We cannot yield assent to that contention. The very fact that the constitutional provision in question makes it the duty of railroads to comply with the obligation therein stated, if "such townor its citizens shall grant the right of way," etc., shows that the framers of the law were not willing to leave the matter entirely at the discretion of municipal officers, and therefore the provision was so framed as that citizens of the county seat could do that which would create the obligation to pass through the town by furnishing the right of way themselves, regardless of any action of municipal officers.

The special exceptions which were sustained to the petition challenged nearly every averment therein as being too general and lacking in particularity; and while it may be conceded that, in suits of this class, more certainty and definiteness is required in a petition than is required in some other suits, we have reached the conclusion that the objections urged are untenable. It is not practicable to discuss in this opinion all of the objections referred to, and in that respect we content ourselves with saying that it seems to us that the petition alleges with sufficient certainty all the facts necessary to entitle the plaintiffs to relief.

We overrule appellants' contention that they were entitled to judgment for the reason that appellee's answer does not appear to have been sworn to by any one acting for appellee, and that therefore the trial court should have rendered judgment for appellants. That branch of the case was never reached in the court below, and no ruling was made by that court in regard to the sufficiency of appellee's answer, and therefore there is nothing for us to pass upon in that respect. We make no ruling and intimate no opinion as to the sufficiency of appellee's answer in any respect.

While many authorities have been cited and examined, the most analogous case which has come under our observation is Macon Railroad Co. v. Gibson, 85 Ga. 1, 11 S.E. 442, 21 Am. St. Rep. 135, which was a suit in equity asking for a decree to compel the railway company to build its road into the town of Thomaston, and which was decided in favor of the plaintiffs. The statute involved in that case is described as follows in the opinion of the court: "If the railroad runs through Upson county, and within five miles of the town of Thomaston, it shall run into and through the corporate limits of that town, or within one mile of the courthouse, provided it shall not cost the company any more from where the road crosses the five-mile limit on the east of the town to the ``Rogers property' than any other route within that limit; the cost is to be determined by two competent, disinterested civil engineers, one to be selected by the company, and the other by the mayor of Thomaston, to locate the route proposed by the company within the five-mile limit, and the route within the town or within one mile of the courthouse, on a way which is equitable and just both to the company and the town: these engineers are to estimate the cost of building such line, and, if they fail to agree, they are to appoint a third disinterested competent civil engineer who shall decide and determine the matter; in estimating the cost of the respective routes, the safety and permanancy of the roadbeds, and keeping up the same are to be considered; whatever amount the estimate shows it will cost more to go through the corporate limits, or within one mile of the courthouse, than the route proposed by the company within the five-mile limit, shall be paid by the town of Thomaston, or the citizens thereof; upon refusal to pay the same, the company is released from building the road through the corporate limits, or within one mile of the courthouse; a sum equal to such extra cost, if any, is to be paid into some solvent bank of this state when the road is built from the city of Macon to the five-mile limit, subject to be checked out by the company when the road is built through the five-mile limit."

After disposing of certain other questions, the court, speaking through Chief Justice Bleckley, disposed of the gist of the case in the following manner:

"(6) We come now to the question whether the citizens of Thomaston can, by petition in the nature of a bill in equity, invoke judicial aid for the purpose of restraining the company from violating this amendment to its charter, and compelling it to co-operate with them in administering the provisions of the amendment. No doubt the general rule is that the state alone will be heard to complain of a corporation for not conforming to the terms of its charter in matters affecting the public interest; or, at all events, that the Attorney General must be a party to the suit, either plaintiff or defendant. Green's Brice's Ultra Vires, 595, 602. But here the immediate interest involved, and sought to be protected, is not that of the general public, but the special and peculiar interest of the town of Thomaston. The object of the Legislature in preventing the construction of this railroad within five miles of the town, unless it should pass within one mile of the courthouse, was to preserve that town from decline and decay in consequence of having a railroad in the vicinity, but not near enough to hinder some rival or competing town from springing up. The general public might or might not have an interest in the measure, but it is certain that the citizens of Thomaston have a vital and peculiar interest therein. The amending act contemplates that that interest shall be respected, and provides means for its protection upon the assumption that the company will conform to the terms of the act. These terms create a legal obligation on the part of the company, and it seems to us that a corresponding right in the citizens as a community to have that obligation enforced is created by the act. The refusal of the company to perform its legal duties to the citizens of Thomaston is a wrong to them, and the wrong is of such a nature as to admit of no adequate and appropriate remedy, save a proceeding to compel a specific performance by the company of the requirements of the act. As we have already said, the company can relieve itself and remain free from any duty to the citizens of Thomaston by not constructing its road within five miles of that town, but it cannot come within five miles with its work and not comply with the act. To do so would be a violation of its charter and a special and particular injury to the citizens of the town, who are no less entitled to the provisions of the amended charter made for their special benefit, than the company is to the provisions of the original charter unrepealed, which were made for its benefit. The citizens have as much right to complain of the company for denying them their dues under the charter as the company has, or would have to complain of any citizen for denying it the enjoyment of any if its chartered rights. It is a mistake to suppose that corporations are created alone for their own benefit, or that their privileges are more sacred than their duties. We see not why a local and special duty may not be enforced at the instance and by the suit of the local and special body of citizens recognized in the charter as immediately interested in some of its provisions.

"(7) A further question is whether some of the citizens of Thomaston, suing in behalf of themselves and all their fellow citizens of the town, will be sufficient as parties plaintiff in this proceeding, or whether all the citizens must join as such plaintiffs. The interest being common to all as a community, and the citizens being numerous (of which fact we can take judicial notice from public statistics) we think the case is provided for by a well-recognized rule which has long prevailed in equity, and that some, as representatives of the class, may sue for all. Story's Eq. Pl. § 94 et seq.; Mitf. Eq. Pl. marg. p. 167 et seq.; Spence, Eq. Jur. 656; 1 Daniell, Ch. Pr. 234, 237; Pomeroy, Rem. Rem. Rights, § 388 et seq.; Hawes on Parties, § 92; 1 Pomeroy, Eq. Jur. §§ 251, 255, 269, 274; Phillips v. Hudson, L. R. 2 Ch. 243; Com'rs, etc., v. Glasse, L. R. 7 Ch. 456; Smith v. Swornstedt, 16 How. 302 [14 L. Ed. 942]. It is true that as only two of the citizens have become parties it is rather a small representation of the whole community; but considering the publicity of the case and of the interest involved in it, and the fact that the suit is located in Upson county, and will be tried, if tried at all, at the county town, which is the town whose citizens are interested, there can be no cause to apprehend that the two plaintiffs on the face of the petition will be disposed, or if so disposed, allowed to misrepresent the community in whose behalf they have brought this suit. No doubt it is somewhat discretionary with all court of equity as to how many representatives of a class will, or ought to be, regarded as a fair representation of the whole class in the given instance. We simply rule that this is a proper case for some of the citizens to represent all, and that the number of representatives, though the smallest that could be recognized, is not, as matter of absolute law, insufficient."

The language quoted from the opinion rendered in that case, and the conclusions reached by that court upon the points therein discussed, are directly in point on the merits of this case, and as the views there expressed meet with the hearty approval of this court, and as the writer feels that he could say little, if anything, that would add to their force, we conclude this opinion without further discussion of the questions therein discussed and decided.

We hold that if the material facts alleged in the plaintiffs' petition are true, the plaintiffs are entitled to whatever equitable relief may be necessary to compel the defendant to comply with the obligation imposed upon it by the Constitution of the state. Whether or not such relief should be granted, and upon what conditions, are matters to be determined by the trial court acting as a chancellor and proceeding in accordance with the rules of equity. But the rules referred to cannot supersede nor limit the constitutional provision heretofore adverted to. However, we do not hold that that provision of the Constitution is to be given a literal and technical construction in reference to the language "unless prevented by natural obstacles, such as streams, hills, or mountains." It may be true, as stated in appellee's brief, that few, if any, natural obstacles render it absolutely impossible to construct a railroad at any particular place, and we do not believe it was the intention of the provision referred to that natural obstacles should not excuse the failure to construct a railroad to a county seat, if it was within the range of possibility to do so. As contended by counsel, that provision, as well as all others, should be given a reasonable construction; and if there are natural obstacles in the way of constructing a railroad into a county seat of such magnitude as to render the construction of the road unreasonable, we think the case would come within the purview of the Constitution and the road be excused.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.