Texas & Mississippi River, Canal, & Navigation Co. v. County Court of Galveston County

Reeves, Associate Justice. On the 26th day of August, d 872, the County Court of Galveston county made the following orders: “Be it remembered, that on the 25th day of June, A. D. 1872, a petition, signed by not less than fifty freeholders of Galveston county, was presented to said court, under and by virtue of authority of an act of the Legislature of the State of Texas, entitled ‘An act to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvements,’ approved April 12, 1871, to take the vote of the electors of said county upon a proposition that said county should aid the Texas and Mississippi Biver, Canal, and Navigation Company in the construction of a canal and line of water communication from Galveston bay to Sabine pass, by making a donation to said company of seven thousand five hundred dollars per mile from Galveston bay to Sabine pass, in the bonds of said comity, payable in twenty years from date, with interest at ten per cent, per annum, payable semi-annually, and providing that the entire distance of the canal and line of water communication shall not exceed seventy miles in length; and in the event it shall be less than seventy miles, the donation shall only be required for the actual number of miles on the line; the bonds to be issued after the completion of each section of five miles. “And on the 25th day of June, A. D. 1872, said petition coming on to be heard in said court, upon due consideration, the following order was made by said court, to wit: ‘It is ordered by this court that an election shall be held in the county of Galveston, at the court-house thereof, on the 27th day of July, 1872, for the purpose of taking the opinion of the electors of said county for or against the proposition that Galveston county make a donation of seven thousand five — 281 — hundred dollars per mile, in the bonds of said county, bearing ten per cent, interest, payable semi-annually, the bonds to be issued in accordance with an act entitled “An act to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvements,” approved April 12, 1871, and to be payable in twenty years after the date of their issuance to the Texas and Mississippi River, Canal, and Navigation Company,’ for the purpose of aiding the said company in constructing a canal and line of water communication from Galveston bay to Sabine pass. “‘And it is further ordered that G. W. Grover, William McQuinn, Robert Smearback, be and they are hereby appointed managers to conduct the said election, which election shall begin on the 27th day of July, and continue four days— Monday, July 29; Tuesday, July 30; Wednesday, July 31; and the said managers shall make return thereof to this court within four days from the last day of said election; and it is further ordered that this order be published in the Galveston Civilian, a newspaper printed in said Galveston county, for three weeks previous to the election.’ ” And afterwards, at a special term of the County Court, the following order was made: “ Be it remembered, that on this, the 5th day of August, 1872, being the first Monday after the closing of the special election ordered upon the proposition of the Texas and Mississippi River, Canal, and Navigation Company, all the members of the court being present, and the managers of the special election having duly made a report and return to this court of the results of said election, with the ballots and records of persons who voted, it is adjudged -that it appears therefrom that there were one thousand and forty electors duly registered for said election, and that of these 730 voted at said election — 704 for the proposition, and 26 against the proposition — and that, therefore, two thirds of the registered voters have voted for the proposition, and that the same is carried,” &c. — 282 — “It is ordered, adjudged, and decreed by the County Court in and for Galveston county, as authorized and required by law, that upon the completion of each section of five miles of said canal and line of water communication by the said Texas and Mississippi River, Canal, and Navigation Company, according to the terms and stipulations contained in the proposition hereinbefore recited, and a report of the same made to this court as therein recited, the County Court of Galveston comity will issue and deliver, or cause to be issued and delivered, unto said company, or to any one duly authorized by the said company to receive and receipt for the same, county bonds of the county of Galveston of the denominations of one thousand dollars and five hundred dollars, with semi-annual interest coupons attached thereto, at the rate of ten per cent, per annum, said interest maturing on the first days of January and July of each and every year, said bonds to be executed, issued, registered, and the payment of the same provided for as required by the provisions of said act of the Legislature, approved April 12, 1871, and to be payable twenty years from and after the date, in lawful money, to bearer. “That said bonds, so to be issued and delivered, shall be to the amount of seven thousand five hundred dollars per mile for each and every mile of said canal and line of water communication aforesaid, completed as aforesaid, but in no event for a greater number of miles than seventy miles; and if the actual number of miles on said canal and line of water communication be less than seventy, then only for such actual distance. “And it is further ordered, adjudged, and decreed by the court, that a special annual tax of one fourth of one per cent, shall be levied and assessed upon all real and personal prop-r erty situated in the county, of Galveston, to provide a fund, as required by law, to pay the annual interest, and two per cent, as a sinking fund for the payment of the principal of such bonds as may be issued to said company during the en — 283 — suing year, to wit, A. D. 1873, and to pay the expenses of assessing and collecting the same. “ The action of the court herein, is based upon and controlled by the acts of the Legislature of April 12, 1871, and of May 31, 1871, the latter requiring special registration.” On the 11th of October, 1873, the president of the company reported to the Circuit Court that five miles of canal between Galveston bay and Sabine pass was ready for use, being the required width and depth, and asked the court to appoint a commissioner to examine, inspect, and report upon the work. The commissioner appointed by the court to examine the work reported, on October 22, 1873, that there were completed five miles of canal and water communication through and from Hanna’s reef towards Sabine pass, fifty feet in width and six feet and over in depth. On November 10,1873, the president of the company, by written application, asked the court to issue the bonds to the company. On the same day the application for the issuance of the bonds was refused by the County Court. The authority of the court to aid in the construction of works of internal improvements is derived from the Constitution. This power is conferred by section 32, article 12, of the Constitution, which is as follows: “ Sec. 32.,The inferior courts of the several counties in this State shall have the power, upon a vote of two thirds of the qualified voters of the respective counties, to assess and provide for the collection of a tax upon the taxable property, to aid in the construction of internal improvements: Provided, That said tax shall never exceed two per cent, upon the value of such property.” The power to assess and collect the tax, not to exceed two per cent, upon the value of the taxable property of the county, is subject to a vote of two thirds of the qualified voters of the county. The particular mode in which the power shall be exercised is not prescribed by this section, and the Legis — 284 — lature may therefore regulate its exercise by the passage of such laws as may be necessary for that purpose, not inconsistent with this provision of the Constitution. The act of April 12,1871, and the act of May 31, 1871, have reference to this section of the Constitution. The act of April 12, to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvements, provides for an election, upon the petition of not less than fifty freeholders of the county, to take the opinion of the voters on a proposition that the county shall aid in the construction of any proposed work of internal improvement, either by taking stock, making a.loan, or making a donation thereto. If two thirds of the qualified voters of the county vote for the proposition, it is made the duty of the County Court to issue bonds of the county, to draw interest not exceeding ten per cent, per annum, and to levy a tax upon all real and personal property in the county, not exceeding two per cent, on the assessed value in any one year. A proposition showing the amount of the donation, payable in the bonds of the county and describing the extent and nature of the improvements to be constructed, is virtually a proposition that the county should pay the bonds by taxation. In no other way can a county pay its bonds. The action of the County Court, as declared in its order of August 5, 1872, was based upon and controlled by the acts of April 12 and May 31. There is nothing in the Constitution to prohibit the Legislature from passing registration laws not inconsistent with its provisions. In the exercise of this right, the Legislature enacted the law of May 31, requiring a special registration of voters, and declaring who should be considered qualified voters at any election held under the provisions of the act of April 12. To ascertain who were qualified voters, the registrar was required to make a special registration of the qualified voters — • — 285 — the registration to be conducted in accordance with the provisions of the act of July 11,1870. By the 5th section of the act, it is provided “ that persons duly registered and holding certificates of special registration, issued under the provisions of this act, shall be deemed qualified voters, and it shall not he deemed lawful for any person not so registered and holding such certificate of registration to vote upon a proposition at any election held under and by virtue of the provisions of ‘An act to authorize counties, cities, and towns to aid in the construction of railroads and other works of internal improvement.’” (Approved April 12, 1871.) This act confines the right to vote on a subsidy to those who have a certificate of special registration. The right to register applies to all who are otherwise qualified to vote. (Article 3, sec. 1, article 6, sec. 1, Const. of 1869.) . The allegation in the answer that two thirds of the qualified electors did not vote for the proposition was a question of fact, and did not properly arise on demurrer to the petition. The other objections, so far as may be regarded as necessary to the case, will be considered together. The defendant denies that the plaintiff was a valid corporation under the laws of the State at the time the donation was made, and denies that the act of December 2, 1871, under which the association organized, was a valid law, for want of an enacting clause. The plaintiff insists that the want of an enacting clause was a clerical error, and was corrected by the apt of April 23, 1873. 1. Whether the act of December 2 was a valid act for want of an enacting clause, as prescribed by the Constitution; and— 2. Whether the act authorized the voluntary incorporation of a canal company, such as the plaintiff. The charter of the plaintiff as a corporation, under the — 286 — act of December 2, 1871, was filed in the office of the Secretary of State, February 28, 1872. In addition to the charter, the plaintiff, by an amended petition, alleged that the company was duly incorporated by an act of the Legislature passed June 2, 1873, and that said act relates back to the original association. In the original petition the plaintiff claims to be a corporation duly chartered under.the Constitution and laws of the ■State, and prays for a mandamus to compel the County Court of Galveston county to issue the bonds voted by the county to the plaintiff in aid of the construction of the canal. On the 23d of April, 1873, the Legislature passed an act amending the first section of the act of December 2, 1871, with an enacting clause, and providing that all companies incorporated prior to the passage of the act of April 23, in accordance with the provisions of the act of December 2, should be validated as fully as if said act had contained the legal enacting clause. It is contended that the act of April 23 is not retrospective in the sense of the constitutional inhibition. The authority of the Legislature to pass retrospective laws in certain classes of cases has been upheld as not being opposed to this constitutional provision. Judge Cooley, in Ms Treatise on Constitutional Limitations, (p. 371,) gives as examples of these classes “ statutes to cure irregularities in the assessment of property for taxation and the levy of taxes thereon; irregularities in the organizar tion or elections of corporations; irregularities in the votes or other action of municipal corporations, or the like, where a statutory power has failed of due execution, through carelessness of officers or other cause; irregular sessions of comts,” &c. The learned judge collects the cases on this point in his notes on page 371. The Constitution of this State declares that the style of the laws shall be: “ Be it enacted by the Legislature of the State of Texas.” — 287 — In the case of The State v. Delesdenier, 7 Tex., 94, the court said that the same clause in the Constitution of 1845 was inapplicable to a resolution, order, or vote, as contradistinguished from a bill. In Swann v. Buck, 40 Miss., 292, the question was whether a resolution was void for want of an enacting clause. The style of the laws, as required by the Constitution, was, “ Be it enacted by the Legislature of the State of Mississippi.” The style of the resolution was, “ Besolved by the Legislature of Mississippi.” The court held “ that the requirement of the Constitution was substantially complied with, and the will of the Legislature sufficiently declared.” In Vinsant, Adm’r, v. Knox, 27 Ark., 286, the court held “that the Constitution must be substantially complied with, and that any law or act without the enacting clause is null and void.” In the case of McPherson v. Leonard, 29 Maryland, 389, it was held that the enacting clause is directory and not mandatory, and that its omission does not render the act void. Cushing, in his work on the Law and Practice of Legisla^ tive Assemblies, (sec. 2102,) says: “ Where enacting words are prescribed, nothing can b'e a law which is not introduced by those very words, even though others which are equivalent are at the same time used.” 1 The judge who delivered the opinion of the court in the case of The People v. Lawrence, 36 Barb., (N. Y.,) 185, says: “ I am not aware that any court in this State has yet felt constrained or even authorized to hold any provision of the Constitution to be merely directory.” The Constitution of Texas, as is the case of most, though not all, of the other States, has prescribed the style and even the words of the enacting clause. The same thing is done in the requirement that the style of all writs and process shall be, “ The State of Texas,” and that all prosecutions shall he carried on in the name and by — 288 — the authority of the “State of Texas,” and shall conclude “ against the peace and dignity of the State.” It is not necessary in the present case to express an authoritative opinion on this question, and none is expressed. I have not found any authorities on the question not referred to in the very able briefs of counsel on both sides of the case. Does the act of December 2 authorize the company to construct a canal for the purposes mentioned in the charter of 1872 ? The charter declares: 1. That the corporation shall be known as the “ Texas and Mississippi River, Canal, and Navigation Company.” 2. “ Said corporate body is organized for the purpose of constructing, operating, and owning a canal, and for the purpose of navigation by such vessels as the directory may deem proper, between the waters of Galveston bay and those of Sabine lake, and the tributaries thereof, by the most practicable route, passing through the counties of Galveston, Chambers, and Jefferson, in said State, and thence by the most feasible route to the navigable waters of the Mississippi river, to the end that steamboat navigation may be established between Galveston city and said river and its tributaries.” 3. Said corporate body shall exist as such, and perform the purposes of its organization, for the period of ninety-nine years, unless sooner dissolved, as provided in said act. 4. This article relates to the principal office and other offices of the company. 5. Provision is made for the directors of the company. 6. “ The capital stock of said company shall be five hundred thousand dollars, divided into shares of one hundred dollars each.” 7. “ The powers and duties of said company, and the mode of conducting and operating its affairs, shall be in accordance with the provisions of the above-named act.” (December 2, 1871.) — 289 — By the first section of the above-named act, it is declared that corporations are public or private. . “Sec. 2. A public corporation is one that has for its object the government of a portion of the State.” “ Sec. 3. Private corporations are of three kinds: first, religious; second, corporations for charity or benevolence; and third, corporations for profit.” The fourth section provides that private corporations may be created by the voluntary association of three or more persons for the purposes and in the manner mentioned in the act. By the fifth section the purposes for which private corporations may be formed are specified, and numbered from one to twenty-six and twenty-seven, (27:) “For any other purpose intended for mutual profit or benefit not otherwise especially provided for, and not inconsistent with the Constitution and laws of this State.” Among, the different objects enumerated are the construction and maintenance of roads, except railroads and bridges coiinected therewith; telegraph lines, stages, &c; the building and navigation of steamboats, and carriage of persons and property thereon; street railways, (26;) “the - construction and maintenance of canals for the purpose of irrigation or manufacturing purposes.” (Paschal’s Dig., art. 5935.) Unless a canal for purposes of navigation, such as the one described in the charter of the plaintiff, is embraced in the general clause of the act, it is not otherwise provided for. The various purposes for which private corporations may be created by voluntary association, are specified with great exactness and minuteness of detail. In the main, the same works can be constructed without the aid of corporate powers. The plaintiff claims the powers and franchises of a corporation for a purpose not expressed in the act and inconsistent with the purposes which are expressed.. A canal for irrigating or manufacturing purposes, has — 290 — scarcely any properties in common with the enterprise purposed by the charter of the plaintiff. The object of the plaintiff, as declared by the charter, was to construct a canal between Galveston bay and Sabine lake, passing through several counties in the State, and finally to the navigable waters of the Mississippi river, to the end that steamboat navigation might be established between Galveston city and said river and its tributaries. Such an enterprise is not, we believe, provided for by the act of December 2. The general clause is controlled by the subject to which it relates, and refers to objects of the character of those named in the act. No additional powers were conferred on the plaintiff by the amendatory act of April 23, 1873. It was intended by this amendment to validate the act of December 2,1871, without enlarging the powers of corporations created under its provisions. If, then, no authority was given by the act of December 2 to make the canal in question, it cannot be maintained that such authority was given by the act of April 23. The act of June 2,1873, recognizes the plaintiff as a corporation, under the act of December 2, and authorizes the construction of the canal according to the terms of its charter of February or March, 1872, with a land grant and other important rights and privileges, such as no one, or any number, however large, or however associated, can exercise but by the sovereign authority of the State. The company could not have performed these acts nor have enjoyed the immunities and privileges secured by this act of June 2, by virtue of its articles of association in any capacity, whether as a corporation, a-joint stock company, or as individuals, if the act of December 2 had contained the legal enacting style. The act of June 2 provides, “that nothing contained in this act shall in any wise validate or invalidate any subsidy, real or pretended, from the county of Galveston.” It can — 291 — therefore have no influence on the decisions of tins case, whatever may be the rights of the company in other respects. It does not appear that the County Court, or the county of Galveston, had any agency in procuring the amendments to the act of incorporation, or that the county had acted upon the amendments and thereby incurred new liabilities to the company, and that the company had for that reason acquired rights not existing before. On the contrary, the County Court, as early as January, 1873, before any amendment was passed, had revoked its order levying the tax to pay the bonds, and it was not until the following October that the company reported to the County Court that five miles of the work had been completed. How much or whether any part uf the canal was constructed before the revocation of the order does not appear. Ho time was fixed by the parties to begin the work. The bonds of the county were to be issued on the completion of each and every section of five miles of canal; and if any portion of the line was not completed at the end of the five years from the date of the acceptance of the proposition, the county was released from any donation for the unfinished part of the work. Taking the order of the County Court as fixing the date, the proposition was accepted August 5, 1872. The equitable rights of the plaintiff were not such rights as may be enforced by mandamus. Affirmed.