Morris & Cumings et. al. v. State of Texas ex. rel. N. Guessett et. al., 65 Tex. 53

Willie, Chief Justice. This cause was originally commenced by filing an information in the nature of a quo warranto, in the name of the state of Texas, against the city of Corpus Christi, Morris & Cumings, and others, for the purpose of ousting the defendants from the franchise of collecting tolls on freight passing over the channel connecting the bays of Aransas and' Corpus Christi. The city having disclaimed any right, title or interest in the franchise, the suit was dismissed as to her, but proceeded against the other defendants; and as to them, a judgment of ouster was rendered.

This judgment was rendered upon sustaining a demurrer to the answers of the defendant, and'they having appealed, it was reversed, and the cause remanded for a new trial. 62 Tex., 728.

The principal questions raised upon the former appeal (though some subordinate points were discussed) were as to the validity of the contract made between Morris & Cumings and the city of Corpus Christi, whereby the former agreed to act as agents for the city in constructing and maintaining the channel, and to receive pay therefor in the bonds of the city, and to collect tolls upon freight passing over the channel and with the money thus collected pay off the bonds; and also as to whether or not a repeal of the charter of the city put an end to this contract.

This court held that the contract was valid, and could not be impaired by any subsequent legislation without violating the constitution of this state and of the United States. This contract gave to Morris & Cumings the right to collect tolls so long only as any of the above bonds remained unpaid. Their enjoy ment of the franchise, therefore, was theoretically of a temporary character, and held in subordination to the rights of the city; but could not be taken from them by legislation, or even judicially, unless forfeited for some cause which in law would entitle the state to recall the franchise.

When the bonds should be paid, the agency and the contract would be at an “end, and the privileges enjoyed by Morris & Cumings as agents would revert to the city, to be used by her in accordance with the laws by which they were granted and regulated. Such, too, would have been the effect of an avoidance of the contract for the reasons urged against it upon demurrer on the former trial. It would have reverted to the city to be held as if no contract had ever been made. ■ The demurrer sought to forfeit the franchise because Morris & Cumings had no valid contract with the city.

As the avoidance of the contract would not have defeated the franchise so far as the city was concerned, we determined the cause without the presence of the city in court, her rights not being imperilled by any judgment that could be rendered in that state of the cause. But the case was presented in an entirely different aspect upon the second trial. The state then sought a forfeiture upon entirely different grounds; viz: The failure to open and maintain the channel of the depth and width required by the laws authorizing its construction.

If this failure worked a forfeiture of the franchise, the quo warranto information would wrest it as well from the city as from her agents, and it would return to the state by which it was originally granted. The city was responsible for the conduct of her agents in that respect, and a successful attack upon the grant for the misfeasance or non-feasance of these agents would be a death-blow to the city’s rights in the franchise itself. Her reversion in the tolls would be destroyed, as well as the temporary right to collect them which she had transferred to Morris & Cumings.

Ho judgment of ouster that could be rendered in this proceeding would deprive Morris & Cumings of the right to collect tolls and leave that privilege in the possession of the city. If Morris & Cumings abused the franchise, they did so as agents of the city; their acts were her’s, and both must alike suffer the consequences. The city of Corpus Christi can not be deprived of so valuable a right without a hearing in court, and she was a necessary party to this proceeding before any judgment of ouster could be rendered.

It is no answer to this to say that the city had, prior to the first trial, disclaimed any interest in the franchise sought to be forfeited. Her disclaimer was doubtless the result of a mere conclusion of law, drawn from the fact that she had contracted with Morris & Cumings that they should enjoy the franchise to pay for constructing the channel, or from the fact that her charter had been repealed, and with it may have fallen all her title to the franchise.

But the pleadings and evidence brought into the case subsequently to her disclaimer, showed that she did have an interest in the franchise, and to this effect was the decision of this court heretofore rendered in the suit. The city’s assertion that she had no right in the franchise sought to be forfeited, was, by that decision, determined to be erroneous; and in order to completely oust the owners and claimants of the franchise and revest it in the state, it was necessary to make the city a party.

It may be added that it is extremely doubtful whether a municipal corporation can, by a mere disclaimer, surrender a franchise in which, not only the corporation, but a large portion of the state’s population residing without the city’s limits, as well as of the commercial world, are interested. Moreover, when the city disclaimed, no interlocutory judgment was rendered against her, nor was she included in the final judgment of ouster entered in the cause; but the state merely dismissed as to her, which left the suit in the same condition as if the city had never been made a party to it at all.

This action was equivalent to an admission on the part of the state that the city had been brought into court under the false impression that she was interested in the franchise; but she having declared that she had no such interests, her assertions in that respect would be received as true, and the suit, erroneously commenced as to the city, would be dismissed. When, therefore, it became an ascertained fact that the city held an important interest in the franchise, it was essential that she should be again brought into court before the grant could be resumed by the state.

The disclaimer was not equivalent to a judgment against the city, and the dismissal following upon it placed her in the same position as if she had never been sued. We think the case could not proceed to judgment without the presence of the city, even with the consent of the other defendants. Any such judgment would be of no avail to forfeit the franchise, and the error in rendering the one now under consideration is fundamental in its character, and must be noticed without an assignment.

As the case will be remanded for a new trial, we may as well dispose of the preliminary questions raised below, and which may again arise upon another trial. We do not think there was sufficient evidence to disqualify the presiding judge. The release signed by Fly & Bussell as attorneys for Moore and Morris & Cumings, had on its face no apparent connection with this suit. Fly & Bussell may have been authorized by these parties to execute the release for them, and yet had no other employment whatever in reference to the ship channel. Ho outside evidence connects the release with the present controversy.

Judge Bussell stated that he knew nothing about any employment of his firm by the above parties. He could not say who signed the paper, but supposed his partner, Fly, did; besides, he renders it very doubtful. as to whether Fly & Bussell had ever been employed even to make the release, for he says Morris & Cumings failed to recognize their employment, but repudiated Fly’s draft for a fee on the ground that they had never been employed.

These facts, taken together, neither establish an employment, nor the performance of services in reference to any matter which had the least connection with the-matters to be determined in the case. The other grounds are not causes of disqualification ; they go rather to show prejudice in the judge, but not that he, or anyone connected with him, had any interest whatever in the subject of controversy. We have considered the grounds of the motion as if they were proven.

They are brought before us by bill of exceptions, and the release, as well as the statement of the judge, seem to have been admitted in evidence without objection. In the case of Slaven v. Wheeler, 58 Tex., 23, referred to by appellees, the judge’s statement never appears to have been used in evidence, but was merely placed by him in the record,, and formed no part of any bill of exceptions. The motion for a change of venue was also properly overruled. It was not supported by affidavit, as is positively required by our statutes. R. S., art. 1271.

In the errors already pointed out, the judgment must be reversed and the cause remanded. Revebsed and Remanded. [Opinion delivered November 3, 1885.]