Houston & Texas Central Railway Co. v. State ( 1902 )

I am not able to concur in the conclusion reached by the majority of the court, and feel constrained to enter my dissent and to state the reasons which influence my judgment.

The clear statement, by the majority, of the history of railroad legislation in Texas presents sharply the issues of law involved in the decision of the case, and relieves me from making any statement, except to develop the points of difference which arise in the application, to the facts, of recognized principles of law.

I was strongly inclined to the opinion that section 6 of article 10 of the Constitution of 1869 repealed the act of the Legislature entitled "An act for the benefit of railroad companies," approved November 13, 1866 (General Laws, page 212); but the forcible argument of the Chief Justice upon this branch of the case has satisfied me that it was not the intention of the convention which adopted that Constitution to repeal existing laws, but to prohibit the enactment of such laws in the future.

I concur with the majority in the construction placed upon the Act of January 30, 1854. Pasch. Dig. of Laws, art. 4945, et seq. But my concurrence rests alone upon the ground that the statute was so construed by the officers charged with its enforcement. It is my opinion that the Legislature did not intend to grant lands for the sidings or switches, but for the length of the line, and that the phrase "with the necessary turnouts" was descriptive of the single track road, rather than expressing the length of line for which the grant was to be made; but the language furnishes some ground for the interpretation, and the Legislature of 1866 extended the time for which the act should be in force, without modifying its terms, which had the same effect as if it had been re-enacted, and places upon the court the injunction to construe the re-enactment in conformity with the construction which had been placed upon the original act.

I understand the opinion of the majority to rest upon two propositions: First, that the Houston Texas Central Railway Company had the right to take the benefit of both the general and the special laws of 1866, or either of them, and that it is the duty of the court to sustain the grant made, if within the provisions of either act. Second, that the language of the special act of 1866, for the benefit of the Houston Texas Central Railroad, should be made to harmonize with the language of the general act, and that its terms should be construed to embrace the rights, benefits and privileges granted railroads under the Act of January 30, 1854.

From these propositions I respectfully dissent, admitting that if either be sound, the judgment of the majority is correct.

The opinion of the majority does not clearly assert, but strongly implies, that the railroad company had the right to reject the special act and take the benefit of the general law. It is undoubtedly true that the State can not force citizens into a private corporation; therefore it is held that there must be some evidence of the acceptance of a charter for a private corporation by the persons named as incorporators. Cook on Corp., sec. 2a. But I have not been able to find any authority holding that it is necessary to show acceptance by a corporation of a special act passed for its benefit or for its government. The Legislature had the right to confer the State's bounty upon the different corporations upon such terms and in such quantities as that department might determine, and the acceptance of the land involved the acceptance of the terms of the grant. The railroad company might have declined to receive the lands, but that will not support the conclusion that it could claim the benefits of the general law from which it was excepted. It is a matter of common knowledge that this class of legislation has been, and is, sought by the corporations, — the bills are prepared by their counsel and passed under their supervision. Such laws express in a greater degree the intention and desire of the corporate body than of the legislative department of the government. Railway v. Reed,64 N.C. 158.

The general law of November 13, 1866, and the special Act of September 21, 1866, were passed at the same session of the Legislature, and since they make different provisions for corporations of the same class, they are, to that extent, in conflict, and it is the duty of the court to construe them so that both may have effect, — the general law applying to railroads generally and the special law to the Houston Texas Central Railway Company. The two should be considered as if embodied in one act, the special law being treated as an exception to the general rule expressed in the general law. Crane v. Reeder, 22 Mich. 334; State v. Perrysburg, 14 Ohio St. 472; State v. Treasurer, 41 Mo., 24; Waldo v. Bell, 13 La. Ann., 329; Wood v. Commissioners, 58 Cal. 561; Stockett v. Bird,18 Md. 489; Brown v. Commissioners, 21 Pa. St., 37; Black Int. Laws, 117; Suth. Stat. Const., sec. 217.

In Crane v. Reeder, above cited, that eminent jurist, Judge Christiancy, said: "Where there are two acts or provisions, one of which is special and particular and certainly includes the matter in question, and the other general, which, standing alone, would include the same matter, and does not conflict with the special act and provisions, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as a Legislature is not presumed to have intended a conflict." This rule of construction is well sustained by the authorities. Judge Christiancy said: "The authorities would warrant the stating of the rule of construction in much broader terms than I have given it."

The office of an exception is to exclude from the general terms of the law the subject mentioned in the exception. Suth. Stat. Const., 217.

Considered as an exception, the special law of September 21, 1866, excluded the Houston Texas Central Railway Company from the provisions made for railroad companies by the general law of November 13, 1866, just as if it had been written "that the grant of sixteen sections of land to the mile of railroad, except the Houston Texas Central," etc.; and being excluded, the corporation would not, by its repudiation of the special act, be embraced in the general law, contrary to the intention of the Legislature.

When the special law was before the House of Representatives, the committee on internal improvements made the following report: "Among the many reasons which actuated your committee with such cordial unanimity, they are of the opinion that this bill in effect only confers a vested right conferred upon the company by previous laws of the State, some of which were passed during the period of secession, the validity of which, perhaps, may be questioned in the States and countries where the company may desire to use its credit. This bill will, if it becomes a law, relieve the company from all such embarrassments, and will greatly aid in effecting such negotiations as are necessary to facilitate the further extension of the road at this time." At a subsequent day, when the bill was before the house, a substitute was offered, entitled "An act granting lands to railroad companies." The house rejected the substitute, showing a determination to deal with this company separately from all others. These facts and circumstances which accompanied the enactment of this law show that the Legislature and railroad company intended and desired that its interests should be separated from the general railroad law of the State, and should be embodied in one act, by which all of the trouble that might arise out of the failure of the corporation to perform conditions which had been prescribed, and the danger of having its rights challenged on account of their origin in some of the enactments during the period of secession, would be avoided. This purpose to cut loose from the general law of January 30, 1854, is made more manifest by the following language of the special act itself: "Provided, that the lands heretofore drawn by said company by virtue of an act to encourage the construction of railroads in Texas by donations of land (approved January 30, 1854), be deducted from the amount of lands granted hereby; and provided further, that the land certificates heretofore issued to this company, on the first three sections of their road, by virtue of the act aforesaid, be included in the terms, benefits, and conditions of this act, as if issued by virtue of its provisions."

Construing the language of the two acts together as one, it seems to me plain that if the Legislature had intended to include the Houston Texas Central in the general terms it would not have adopted the proviso which takes out of the operation of the general law all of the lands granted and to be granted to that railroad company.

Regarding the special Act of 1866 as the only source of authority for issuing the certificates under which the land in question was located, I come to the construction of that act, the granting clause of which is in the following words: "The Houston Texas Central Railway Company is entitled to receive from the State a grant of sixteen sections of land, of six hundred and forty acres each, for every mile of road it has constructed, or may construct and put in running order, in accordance with the provisions of the charter of said railroad company." In the case of Railway v. State, 81 Tex. 599, the court had under consideration the Act of August 16, 1876, which was expressed in this language: "That any railroad company heretofore chartered, or which may be hereafter organized under the general laws of this State, shall, upon the completion of a section of ten miles or more of its road, be entitled to receive, and there is hereby granted to every such railroad from the State, sixteen sections of land for every mile of its road so completed and put in good running order." This language is practically the same as that of the special act under consideration. This court held that the grant, by the law of 1876, was for each mile in length of railroad, not including the side tracks, turnouts, etc., distinguishing that law from the law of January 30, 1854, by the absence of this language: "The provisions of this act shall not extend * * * to any company for more than a single track road with necessary turnouts." This language is not in the Act of September 21, 1866, which falls so clearly within the case of Railway v. State that I can not do better than quote from that opinion as follows: "Can it be contended that upon the completion of a section of ten miles a company would be entitled to receive lands for every mile of road completed by it on some other portion of its lines? And if not, upon what theory can side tracks be construed to be within the purview of the statute when they are not mentioned by the distinctive appellation by which they are commonly known? It is true that side tracks are necessary appurtenances to every railroad constructed for public use, but the deduction from this is not that the Legislature intended to grant lands for their construction, in the absence of words in the statute evidencing that intent." The terms of the act in question are not broader than those of the law construed in that case, and to my mind, there is no material difference in their terms. But the majority of the court read into the special act the qualifying words embraced in section 12 of the Act of 1854, thereby reconstructing the special Act of 1866, so as to make it practically read thus: "for every mile of single track road with necessary turnouts," etc., — bringing the special act within the construction given by the officers in executing the law of 1854. To reach this interpretation, the majority construe the language, "in accordance with the provisions of the charter of said railroad company," as qualifying the granting clause thus: "shall be entitled to receive from the State a grant of sixteen sections of land, of six hundred and forty acres each, in accordance with the provisions of the charter of the said railroad company, for every mile of road it has constructed, or may construct and put in running order." To sustain this construction, resort is had to a special act of the Legislature, "supplementary to the several acts incorporating the said company, approved January 23, 1856," in which this language occurs: "But the company shall be entitled to the rights, benefits, and privileges granted by an act approved January 30, 1854, entitled `An act to encourage the construction of railroads in Texas by donations of lands.'" I can not concur in this transposition of the terms of this statute in order to reach the conclusion that by the special act the Legislature intended, through its charter, to confer upon that railroad company the benefits of the law of 1854. If the Legislature had desired to refer to that law for the quantity of land to be granted, it would have been so natural to do so in direct terms that one hesitates to believe that the indirect method was adopted. The circumlocution of going through an amendment of the charter to reach an expression of the terms of the former act is, in my judgment, unwarranted by anything to be found in the law itself, or in the circumstances accompanying its enactment. The natural construction of the statute is that the qualifying phrase applied to the last preceding subjects "has constructed, or may construct and put in running order." That construction would be natural and consistent; the language aptly applies to "construct" as a subject, but it must be strained to qualify the granting clause. Suth. Stat. Const., secs. 223-267. I think the relation of that phrase to the preceding phrases is determined definitely by the provisions of section 2, in which it is provided that upon the completion of twenty-five miles of the road the company may give notice to the Governor, who shall appoint a skillful engineer to examine the track, "and if upon the report of said engineer, under oath, it shall appear that said road has been constructed in accordance with the provisions of its charter and the general laws of the State in force at the time regulating railroads, thereupon it shall be the duty of the Commissioner of the General Land Office to issue to said company certificates of six hundred and forty acres each, equal to sixteen sections per mile of road so constructed." Certificates were to be issued for the land granted, and the amount of certificates was to be determined by the miles "constructed in accordance with the terms of its charter." It follows that the grant was for the like number of miles "so completed," and the qualifying clause is thus known to refer to the phrase which preceded it in the sentence.

I repeat that it appears to me from the circumstances and the language used in the special Act of September 21, 1866, that the Legislature intended, and the railroad company desired, that the Houston Texas Central Railway Company should be definitely separated from the general railroad laws of the State, and that all of its rights should be represented by that special act. In the report of the committee before quoted it is stated, as one of the reasons why the law should pass, that if it should became a law the affairs of the company would be relieved of all embarrassment by reason of the fact that some of the laws upon which its rights depended had been enacted during the time of secession, and though not expressed, it can be read between the lines that many forfeitures and failures which occurred during that period would be condoned by the enactment of this special law, and the law applicable to the rights of that company would be so simplified as to address itself favorably to the financiers of other States and countries. Disregarding the charter of that railroad and all former laws, the special law of 1866 granted to that company sixteen sections of land for every mile of road theretofore built or thereafter constructed. If all former grants were forfeited and all other laws which granted lands were repealed, that special act would support the title to all lands of that railroad company granted for construction of the road. It is complete within itself. It reaches back to the throwing of the first shovel of dirt at Houston, and forward to the driving of the last spike at Red River. It bridges every chasm and condones every forfeiture, — gathering under its protection all lands previously granted and all certificates theretofore issued. If the law of January 30, 1854, was to be the authority for future grants, why deduct lands before granted under that law, and why include certificates before issued under it in the provisions of the special law? The terms of the special act are consistent alone with the intentions foreshadowed by the committee report that this railroad company desired to have all of its land grants grouped under this one act, which would disembarrass it of the past and be so simple as to recommend it to capitalists in other States and countries.

My associates arrive at the conclusion that the original charter of this railroad company, as amended February 14, 1852, granted land for the sidings, as well as for the main track. The language of the charter is as follows: "There shall be granted to said company eight sections of land, of six hundred and forty acres each, for every mile of railway actually completed by them and ready for use, and upon the application of the president of the company, or any duly authorized agent thereof, stating that a section of five miles or more of said railway has been completed and is ready for use, it shall be the duty of the Comptroller of Public Accounts to require the State Engineer, or a commissioner to be appointed by the Governor, to examine said railway, and upon his certificate that said section of railway has been completed in a good and substantial manner, and is ready for use, the Comptroller shall give information to that effect to the Commissioner of the General Land Office, whose duty it shall be to issue to said company land certificates to the amount of eight sections of land, of six hundred and forty acres each, for every mile of railway thus completed and ready for use." The language of the Act of 1876, which was construed in Railway v. State, cited above, is as follows: "That any railroad company heretofore chartered, or which may be hereafter organized under the general laws of this State, shall, upon the completion of a section of ten miles or more of its road, be entitled to receive, and there is hereby granted every such railroad, from the State, sixteen sections of land for every mile of its road so completed and put in running order." There is no substantial difference between the provisions of the two laws; each grants to the railroad company the quantity of land named for each mile of railroad completed and put in running order, and in each it is provided that the railway company shall receive the quantity of land granted per mile when it shall have completed a section of its railroad of the stated length. "Upon what theory can side tracks be construed to be within the purview of the statute when they are not mentioned by the distinctive appellation by which they are commonly known? It is true that side tracks are necessary appurtenances to every railway constructed for public use; but the deduction from this is not that the Legislature intended to grant lands for their construction, in the absence of words in the statute evidencing that intent." Railway v. State, before cited. A mile of railway means a mile in length of the road, composed of the main track, side tracks, turnouts, switches, etc. The grant being for a completed mile of railway and there being nothing in the special act under examination to indicate to the contrary, it must be construed to mean a mile in its length, including side tracks. Railroads are permitted to charge three cents per mile for passenger fare, and a certain rate per mile, or per hundred miles, for carrying freight, but it would not be contended that the side tracks might be added in either case.

The trial court made the following finding of fact: "That on November 5, 1873, Governor E.J. Davis appointed Engineer Gray to examine said road from McKinney to Red River, and the sidings in said road from Houston to Bryan. The report being made, the Governor indorsed upon the same that it did not show that the main track from McKinney to Red River was built according to law, and rejected the claim for land certificates as to the main tracks from McKinney to Red River, but allowed the same for sidings over the entire road, including the sidings on the line from McKinney to Red River." From this finding of fact, which is not challenged by the railroad company, it appears that the Houston Texas Central Railroad Company did not claim land for its sidings under its charter, under the law of 1854, nor under the special Act of 1866, contemporaneously with the building of its railroad. After the road was completed to Red River, more than seven years after the enactment of this law, the company made application, which was granted, for land for the sidings for the whole length of the line. Can it be believed that the railroad company, believing that it was entitled to land for sidings, would have procured certificates for hundreds of miles of main track, making no demand for certificates for sidings? It is manifest that during the time of the construction of its road, the officers of the company and the officers of the State did not construe the law, especially the special act of 1866, as it is now interpreted by the majority of the court.

The strongest argument advanced in the able opinion of my associates is based upon the supposed "continuity" of purpose on the part of the Legislature in granting lands to railroad companies and the intention to place all railroads upon equality. Because the general law virtually reenacted the law of 1854, it is properly held by this court that the contemporaneous construction was likewise adopted as to that act, and if the Legislature had used the same language in the special act, the argument of the continuity of purpose to give the same quantity of land to this company as to others would be forcible. But it is equally true that when the Legislature has applied different words to the same subject matter, the change of language evidences a change of purpose and intent on the part of the Legislature. Suth. Stat. Const., secs. 255, 256; Black on Interp. of Law, 191. As the adoption of the law of 1854 showed a continuance of the same policy as to railroads generally, it is equally true that the different language used in the special Act of 1866 shows an intention not to grant the same quantity of land to the Houston Texas Central Railroad Company. Except by change of words, how could a different intention be expressed?

I am of the opinion that the judgment of the Court of Civil Appeals should be reversed, and that the judgment of the District Court should be affirmed.