Morris & Cummings v. Leona

Willie, Chief Justice. This suit is by the appellants against the schooner Leona and her owner, N. Gussett, for the sum of foür hundred and thirty-one dollars and thirty-four cents, alleged to be due the appellants as double tolls on freights transported during the month of May, 1881, in the Leona, over an artificial channel connecting the bays of Aransas and Corpus Christi. The main defense of appellees was the failure of Morris & Cummings to keep the channel of the depth.of eight feet and the width of one hundred feet throughout its entire length, as required by the laws of the State and a contract entered into by them with the city of Corpus Christi. The appellee alleged that it was of much less depth and width than was required at the time the freight for which the tolls were charged passed over the channel, and had been in this condition for a long time previous thereto. They further claim that the city had, as far back as 1877, caused the width and depth of the channel to be ascer [308] tained by proper soundings, and, finding it narrower and shallower than the contract required, had notified Morris Sc Cummings of the fact; that they had refused to restore its proper dimensions, and that, thereupon, the city council had suspended their right to collect tolls, and that this suspension was in force at the time the Leona transported the said freight over the channel. The appellants denied these allegations as to the dimensions of the channel at that time, and further insisted that if the facts alleged were true this would not defeat their right to collect the tolls, as this right was a franchise which could be forfeited, if at all, only by a direct proceeding on the part of the State, and that it was not subject to the collateral attack made upon it in .this case. The court below found the facts to be in accordance with the defenses set up by the appellees, and that the suit could not be maintained, because the channel was not up to the contract requirements at the time the Leona passed over it with the freight upon which the tolls were charged, and gave judgment for the appellee. From that judgment this appeal is prosecuted. There was abundant proof produced upon the trial to show that during the entire month of May, 1881, the canal was not eight feet deep or one hundred feet wide for its whole length, but that at that time, and for more than three years previous, thereto it had been allowed to shoal and narrow to much less dimensions. It was also shown that, as far back as 1877, the channel had become so obstructed as to interfere with the transit of vessels drawing less than eight feet of water; that the city council of Corpus Christi had ascertained this fact by an actual survey; had given notice to Morris Sc Cummings to restore it to. proper dimensions, but that they had failed to do so until September, 1881. The city council had passed an ordinance suspending the collection of tolls till the channel should be restored, and that this order was in force during the month of May, 1881. Some of this evidence was objected to by the appellants, but as these facts were important upon the question of the right of appellants to demand toll, as will be seen hereafter, there .was no error in the court’s taking it into consideration. Questions as to the relation of Morris & Cummings to the city of Corpus Christi in reference to the right to take these tolls, have been before this court on three different occasions. (See Morris & Cummings v. Schooner Leona, 62 Texas, 75; Same v. State, Id, 728; Same v. State, 65 Texas, 53.) [309] The result of these decisions is that the right to construct and maintain the channel, and demand toll for the passage of vessels through it, which had been granted to the city of Corpus Christi, was by her transferred to Morris & Cummings upon certain considerations and conditions, and until the bonds issued by the city in payment for the channel should be paid off by the amount received for such tolls. This agreement as to the transfer was held to be valid in all respects, and a contract which the State could not impair by subsequent legislation. Every part of the contract was binding and might be enforced. Hence that portion which provides for a suspension of tolls so long as the channel was not of proper dimensions can not be eliminated from the contract, but must be rendered effective according to its terms. It was inserted for the purpose of securing a compliance with the other provisions of the contract, and effecting its object, which was to excavate and keep constantly in good condition a channel which would open the port of Corpus Christi to the commerce of the world. To dig such a channel and then allow it to fill up, would be of little service to commerce or the interests of the city; hence the requirement that it be kept at the proper depth was as important as that it should be of sufficient dimensions when originally constructed. The city council reserved no other means of enforcing this important provision of the contract, except the right to suspend the tolls if it was not fulfil1 ed. If she can not enforce these terms, then the reservation is. void, and the contract stands as if no such right was reserved and the city is powerless to compel the contractors to keep the channel in the condition they have agreed that it should at all times remain. But it is said the State must proceed by an information in the nature of a quo warranto to forfeit the franchise, and this is the only remedy for any default in maintaining the channel at proper depth and breadth. The quo warranto proceeding is used to forfeit, not to suspend a franchise. It is used to reclaim a privilege granted by the State, not to punish for a breach of private contracts. The present contract contemplated no such penalty as the permanent deprivation of the right to collect tolls for a failure on the part of Morris & Cummings to keep the channel of prescribed dimensions. The penalty was a suspension of tolls till the proper size of the channel should be restored This stipulated penalty was imposed to compel the maintenance [310] of a channel which would admit vessels of sufficient draft to serve the purposes of the commerce of Corpus Christi. If it should become shoaled it was to the interest of the city that its depth should be restored, and the fact that no tolls could be received till this was done, was a spur and an encouragement to the contractors to restore it as soon as possible. Whatever may be the right of the State to proceed for a forfeiture of franchise under the laws by which it was granted to the city, it is very clear that the existence of such a power in the State, would not interfere with the right of the city to enforce her contract with the contractors of the channel. These rights were entirely consistent with each other. The one, as we have held, mupt be directed against all parties having an interest in the franchise, viz., the city and the contractors. (Morris & Cummings v. The State, 65 Texas, 53.) The other was to be enforced between the city and the contractors, without any reference to the State whatever. We have then a valid contract, with a binding stipulation contained in it, that if the agreements on the part of Morris & Cummings as to deepening and maintaining the channel are not complied with, their right to tolls should be suspended. Their agreement as to maintaining the channel was not fulfilled. It was then the right of the city to suspend the tolls until the channel was restored. This right she exercised upon proof satisfactory to herself, and which was shown in this case to be true; and she exercised it in the only manner she could, viz., thorough action on the part of her council. She gaye notice to Morris & Cummings, and allowed them an opportunity of performing their duty before enforcing the stipulated penalty. This they refused to do, and we can see no reason why, in accordance with their contract, the right to suspend the collection of tolls should not take place and be put into practical effect when they are sought to be collected during the suspension. This would be the effect of a breach of a like contract where no franchise was involved. If a suspension of the right to receive money from third persons for a failure to perform an agreement was stipulated for, upon such failure the receipt of the money could no longer be enforced. There is nothing in the nature of a franchise which makes a contract between parties in reference to it less obligatory than when made with reference to other matters. As to its forfeiture for anything which the State alone can take advantage of, this is between the State and [311] its owners; but as to any lawful contracts made between the grantee and other parties, no interference of the State is necessary to enforce them, and no failure on her part to interfere can prevent the grantee from insisting upon their performance. The stipulation under consideration was in effect an agreement on the part of Morris & Cummings that they would not charge tolls whilst the channel was in a shoaled condition. This stipulation inured to the benefit of each vessel that used the channel, and the suspension was inoperative if vessels could be compelled to pay toll after it was declared, in the same manner as before. When the contingency happened for which the tolls might be suspended, and the suspension took place, the agreement was that any vessel might pass over the channel without paying toll, and it was a violation of their agreement for the appellant to collect them. If the agreement had been that any vessel which should be grounded on her way through the canal should not pay toll, such a contract could certainly be enforced by pleading this fact in a defense of a suit to recover toll from her. This would be a suspension of the franchise in the particular case. If it can be suspended at all it can be suspended to any extent the parties can agree upon. If a contract to the effect that the franchise of Morris & Cummings should cease and revert to the city in case of their non-performance of any part of their contract had been so authorized by the State, there could be no objection to its enforcement, through it deprived them of the franchise altogether and reinvested it in the city. Ho proceeding on the part of the State would have been necessary, as the franchise was not to be resumed by the State, but by her grantee. In that event their right to tolls would be divested by virtue of their contract; and that it was suspended by the action of the council does not admit of a doubt. We think that the conclusions of the court that this suit could not be be maintained were correct, and the judgment is affirmed. Affirmed. Opinion delivered February 1, 1887.