G. H. S. A. Ry. Co. v. State , 81 Tex. 572 ( 1891 )

This suit was brought by the State of Texas, through its Attorney-General, to recover of the appellant corporation sixty sections of land which had been located and surveyed for it by virtue of sixty alternate certificates issued July 12, 1877, to the company by the Commissioner of the General Land Office.

The grounds of action as alleged in the original petition are as follows:

"1. That said certificates were claimed to be issued and located, as shown upon their faces, in accordance with the provisions of 'An act to encourage the construction of railroads in Texas by donations of lands,' approved January 30, 1854, and acts amendatory thereof; all of which said laws had expired by their own terms and limitations, and were repealed by other acts of the Legislature and by the Constitution of 1869, before the road for which said certificates were issued was constructed.

"2. That the company in procuring said certificates represented, and on said representation obtained them for and on the ground, that said company had completed at the date of their issuance a section of thirty-six miles and 1474 feet of main track from the Guadalupe Bridge to San Antonio, and two miles and 2000 feet of sidings and switches at other points on its line, making a total of thirty-eight miles and 3474 feet of railway. That on this representation and statement, which were untrue, the certificates were issued. That there were not then in fact, nor have there ever been, thirty-six miles and 1474 feet of main track between said. Guadalupe Bridge and San Antonio; but that the distance between those points has always been, and is now along the main track of said railroad, only thirty miles and 1205 feet, which said company then knew and has always known. That for the said distance of thirty miles and 1205 feet of main track the defendant company falsely, fraudulently, and unlawfully obtained, received, and appropriated to its use sixteen land certificates of 640 acres each to the mile for thirty-six miles and 1474 feet of alleged main track, as shown upon the face of said certificates; and in that way unlawfully and fraudulently received sixteen sections of 640 acres of land each to the mile for six miles and 269 feet more from the State than the actual mileage of said road between the said Guadalupe Bridge and San Antonio.

"3. That the two miles and 2000 feet of sidings and switches called for in and shown on the face of said certificates belonged to and were a part of other sections of defendant's road at the following points, to-wit: At Flatonia, 1200 feet; at. Quarry track, near Flatonia, 6600 feet; at Eagle. Lake, 500 feet; at New Philadelphia, 1400 feet; at Pierce Junction cattle track, 1460 feet; making a total of sidings and switches of 12,560 feet, or two miles and 2000 feet. That of the thirty-six miles and 1474 feet mentioned and represented on the face of the certificates as main track, six miles and 269 feet of the same were in truth and in fact not main track, but sidings and switches at points between the Guadalupe Bridge and San Antonio. That the certificates hereinbefore mentioned and described were in fact issued for eight miles and 2269 feet of switches and sidetracks, for the construction of which the said company was not entitled to aid from the State in any amount or quantity of land, either under general or special laws.

"4. That said railway was constructed and completed westward from the Guadalupe Bridge to San Antonio as aforesaid between the 17th day of November, 1876, and February 13, 1877; and the said two miles and 2000 feet of sidings and switches mentioned in said certificates were built by said company between April 1, 1870, and April 18, 1876, and were the sidetracks, switches, parts, parcels, and appurtenances of and belonging to other portions and sections of defendant's railway at the points hereinbefore named lying eastward of said Guadalupe Bridge, for the construction of which said company had at other and previous times unlawfully obtained, abused, and appropriated from the State sixteen sections of land to the mile thereof.

"5. That six miles and 269 feet of sidings and switches called for and contained within but not shown upon the face of the aforesaid certificates and for which they were to that extent issued, and also the two miles and 2000 feet of sidings and switches shown upon the face of said certificates and for which they were issued, were at the time of the issuance of said certificates and at all other times prior to and since said dates necessary appurtenances to and adjuncts and parts of the defendant's railway, and were essential to the use and operation of said railway. That said railway at no time was or could have been complete and in good running order without said sidings and switches. That without them said railway was not substantially built or fully equipped for the transportation of passengers or freight or either, nor would said road without them have been constructed in accordance with its charter or the general laws in force in this State regulating railways.

"6. That it can not be ascertained from the face of said certificates, or from the location and survey of said lands, or by any other means, which of these certificates were issued, located, or surveyed exclusively on account of the main track of said railway."

The prayer of the petition was for a recovery of the lands and a cancellation of the certificates.

The defendant company in a special answer denied that in procuring the certificates it had misrepresented the number of miles of main track and the number of miles of sidetrack for which they were issued; and alleged that they were issued upon a correct report made by the engineer of the State and approved by the Governor; and that by a clerical error which was made in the Land Office an erroneous recital as to the respective numbers was inserted in the face of the certificates. The answer contained other averments, which it is not necessary to notice.

A supplemental petition was filed on behalf of the State, which contained these allegations: "The State says the defendant was never entitled to receive the lands in controversy or any other lands in aid of constructing its railway west of the Guadalupe Bridge, for the reason that by the terms of its charter, passed July 27, 1870, and the amendment passed March 10, 1875 (mentioned in plaintiff's petition), which are referred to and made a part hereof, it was required and undertook to complete its said railway to San Antonio on or before January 28, 1876, conditioned that in the event of its failure to do so it should forfeit all the corporate rights, powers, and privileges therein conferred. That it failed to so construct or complete its said road to said place within said time, on or before January 28, 1876, and therefore it ipso facto by the terms of its said charter contract, which the State here specially interposes, pleads, and demands to be enforced, lost and forfeited all its rights and all privileges, immunities, and grants of land, if any it ever had, held, or was entitled to, by virtue thereof."

Under the rules of practice prescribed by this court, these averments should properly have been made as amendments to the original petition; but they were not excepted to on that ground, and the objection is deemed to have been waived.

The case was tried before the judge without a jury, upon an agreement as to the principal facts, which are as follows:

"1. That defendant received from the State 619 land scrip certificates for 640 acres each, all of which is located on public domain, each of said certificates being in form and substance as exhibit A, hereto attached.

"2. That the defendant's main line of track from the Guadalupe Bridge west to San Antonio, mentioned in each of said certificates, is thirty miles and 1205 feet; and the sidings and switches between same points is six miles and 269 feet, as will more fully appear by exhibit B, attached hereto.

"3. That the two miles and 2000 feet of sidings and switches mentioned in each of said certificates were east of Guadalupe Bridge, as more fully appears by exhibit C, hereto attached; and that prior to the issuance of said certificates, the defendant or its predecessor received sixteen sections of land of 640 acres each for the main track to which said sidings and switches belonged east of said Guadalupe Bridge.

"4. That the lands described in plaintiff's petition were located and are now held without patents by the defendant by virtue of said certificates according to the number and description set forth in said petition.

"5. Correspondence between Governor Hubbard and Attorney-General Boone, hereto attached, marked exhibit D, may be introduced subject to objections as to its legal effect.

"6. The charters and special laws relating to defendant company may be used on the trial in evidence.

"7. Any other pertinent fact may be introduced in evidence by either party on the trial.

"8. That there now remains belonging to the State 4,500, 000 acres of the public domain reserved since 1879 from location by certificates, and was at the time of the completion of said road to Del Rio.

"9. That defendant paid taxes on the land sued for continuously since they were located up to the present time.

"10. That defendant paid all fees for surveying and locating said lands sued for, as well as the same number of alternate sections, known as even numbers, for public free school fund.

"11. The various engineers appointed by the different Governors to inspect railways as the same were constructed, in their respective reports of inspection to the respective Governors, stated the number of miles and feet of main track, the number of miles and feet of sidings, the number of miles or feet of bridges, culverts, and trestles, the number of depots, cars, engines, weight of iron, and width and character of track and grade. The action of the respective Governors (except Governor Roberts) in said reports were usually in the following words, 'Report examined and approved,' upon which reports and action of the respective Governors the Commissioner of the General Land Office issued to the respective companies the certificates for main track and sidings, in form as shown in exhibit A.

"During the administration of Governor Roberts the reports of the engineers were in substance and form of those made to other Governors, but he approved for only the number of miles of main track stated in the reports. In one instance during the administration of Governor Davis he approved one report for sidings exclusively, for which certificates were issued in the usual amount per mile. This was also done in one instance by Governor Hubbard, as shown by exhibit C, for which certificates were issued. On March 13, 1877, Governor Hubbard made the following indorsement on one of the reports: 'This report of Inspector Gray examined and approved for thirty miles main track and sidings, as being made, graded, and in all respects complying with the law.'

"12. Exhibits E and F are copies of letters of Governor Coke, written to the Commissioner of the General Land Office, and G the letter of Governor Pease, March 30, 1856, to the Commissioner of the General Land Office, and H, March 24, 1856, Tipton Walker to Governor Pease, to be introduced.

"That the road of defendant from the Gaudalupe Bridge to San Antonio, for which the certificates described in the petition were issued, was constructed and completed between November 17, 1876, and February 13, 1877. That the two miles and 2000 feet of sidings east of the Guadalupe Bridge were constructed and completed subsequent to October 31, 1876, and prior to February 13, 1877. This admission is subject to correction by defendant as to dates."

The following is so much of the form of the certificate referred to in the above statement as is material:

"No. 1621 — LAND SCRIP — 640 ACRES.

"THE STATE OF TEXAS, GENERAL LAND OFFICE,

"AUSTIN, TEXAS, July 12, 1877.

"This certificate entitles the Galveston, Harrisburg San Antonio Railway Company to 640 acres of land, to be located upon any of the vacant and unappropriated public domain of the State of Texas, in accordance with the provisions of an act to encourage the construction of railroads in Texas by donations of lands, approved January 30, 1854, and acts amendatory thereof. Information having been received as required by said act that said company has completed a section of thirty-six miles and 1474 feet of main track from the Guadalupe Bridge to San Antonio, and two miles and 2000 feet of sidings and switches, making a total of thirty-eight miles and 3474 feet of railroad, in accordance with the provisions of its charter and general laws regulating railroads," etc.

The exhibits attached to the agreement are incorporated with it in the statement of facts, but their contents need not be set out in this connection.

The judgment was that the State recover the lands and that the certificates be canceled. It was predicated upon the following findings of fact and conclusions of law. As matters of fact the court found:

"1. That defendant constructed its line of railway from the Guadalupe Bridge west to San Antonio; that the distance between these points of railway is thirty miles and 1205 feet of main track, and the sidings and switches between the same points are six miles and 269 feet.

"2. That defendant railway also constructed two miles and 2000 feet of sidings east of the Guadalupe Bridge.

"3. That the defendant received from the State sixteen land certificates for 640 acres of land for each mile of the main track mentioned above, and sixteen land certificates for 640 acres each for each mile of its sidings and switches mentioned above, all of which have been located upon the public domain, included in which are the sections sued for.

"4. That the certificates show on their faces that they were issued for main track and for sidings and switches, but do not show which certificates were issued exclusively for main track and which were issued exclusively for sidings and switches."

The court also concluded as matters of law:

"1. That the law granting lands in aid of railways did not grant certificates for sidings and switches, but for main track only.

"2. The certificates showing on their faces that they were issued for sidings and switches as well as for main track, were issued without authority of law.

"3. That the State is entitled to judgment canceling the certificates and recovery of the land."

The appellant assigns, (1) that "the court erred in its conclusions of law in holding that the laws granting lands to railways did not grant lands for sidings and switches, but for main track only;" (2) that it "erred in adjudging the land certificates to be null and void and that they be canceled and held for naught."

The findings of fact are not called in question upon this appeal.

The Attorney-General, however, submits in effect that by reason of its delay in constructing its road to San Antonio the appellant did not acquire the right to any lands, and that the judgment should therefore be affirmed without reference to the correctness of the legal conclusions announced by the judge. If the judgment be correct, the fact that the court gave a wrong reason for it is not a ground for its reversal. The right of the company to receive certificates for the extension of its road is the foundation of its claim; and whether such was its right or not is logically the first question in the case, and will be the first determined.

Before proceeding to the discussion it is to be remarked that we construe the agreement as to the facts to mean that the special acts of the Legislature bearing upon the questions involved are to be considered as if offered in evidence before the court and to be treated as laws of which the court takes judicial knowledge. The briefs of counsel refer to them freely, and no objection is made from either side.

The certificates in controversy in this case purport upon their face to have been issued by virtue of the Act of January 30, 1854, and acts amendatory thereof; but the Attorney-General contends, and counsel for appellant seems to concede, that the authority to issue the certificates, if it existed at all, was conferred by the Act of August 16, 1876. Laws 1876, p. 153. The Attorney-General insists, however, that before this act took effect the appellant's charter had been forfeited and had become void, and that it had been thereby rendered incapable of receiving a grant of lands. If the charter had become void at the time the Act of August 16, 1876, went into effect, it may be readily conceded that the company acquired no right under that act. By a special law passed July 27, 1870, entitled "An act supplementary to an act to incorporate the Buffalo Bayou, Brazos Colorado Railway Company, and to the other special acts relating to said company," the present corporation was recognized as the successor by a foreclosure sale to the property and franchises of the original corporation named in the title, and the name was changed to that of the Galveston, Harrisburg San Antonio Railway Company. Section 3 of that act provided:

"That said new company is hereby authorized to extend the existing line of railroad owned and operated by said company from Columbus, in Colorado County, to San Antonio, in the county of Bexar, within four years from the passage of this act, and thence to the terminus on the Rio Grande by such route as the directors shall deem most feasible, with a branch from the most suitable point to New Braunfels, in Comal County, within four years from the passage of this act; or said new company may connect with any line of railroad that may be constructed or under construction to San Antonio or the Rio Grande south of the latitude of the city of Austin and the Colorado River, instead of building its own line beyond the point of such connection; and may build it and connect with any line of railroad that may be constructed or under construction and designed to form a part of any railroad line to the Pacific south of the thirty-fifth parallel of latitude; nothing herein being so construed as to exclude said new company from the right to construct also any part of the line up the Colorado Valley formerly designated by said "sold-out" company as its route under the provisions of the eleventh section of the Act of December 19, 1857; provided, that if the said road shall not be completed within the time specified in this section, then this charter shall be forfeited." Spec. Laws 1870, p. 45.

By this it will be seen that the company was required to construct its road to San Antonio on or before the 27th day of July, 1874, upon penalty of forfeiting its charter. But by a special act passed March 10, 1875, the time was extended to the 28th day of January, 1876. By virtue of "An ordinance in relation to railroads," passed by the Convention of 1875, the time was in effect extended until the adjournment of the next Legislature. 4 Sayles' Stats., 599. That adjournment took place on the 21st day of August, 1876. General Laws 1876, p. 321. The appellants road was not completed to San Antonio by the last named date, and it is insisted that by reason of the company's failure in this respect its charter ipso facto ceased to exist. It is universally held as a general rule that the forfeiture of the franchises of a corporation can not be claimed in a collateral proceeding merely because a ground of forfeiture may exist. The forfeiture must be declared in a judicial proceeding instituted for that purpose. Whether such proceeding shall be taken or not depends upon the will of the State, for it has the election to enforce the forfeiture or to waive it. When the rights of the corporation come into inquiry in a collateral proceeding, the case is to be treated as if no ground of forfeiture existed unless there has been a judgment so declaring in a direct action by the State. Matter of Elevated Railway, 70 N.Y. 337; Montgomery v. Merrill,18 Mich. 343; Moseby v. Burrow, 52 Tex. 396; Railway v. Johnson, 49 Mich. 148; Stoups v. Plank Road Co., 10 Ind. 47; Heard v. Talbot, 7 Gray, 113; Bohannon v. Burns, 31. Miss., 355; Baker v. Admr. of Backus, 32 Ill. 79; Dyer v. Walker, 40 Pa. St., 157; West v. Ins. Co., 31 Ark. 476; Penobscot Corporation v. Lamson, 16 Me. 224; Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 45; Briggs v. Canal Co.,137 Mass. 71. This rule applies as well when the ground of forfeiture is expressed in the charter as when it is merely implied, as some of the cases cited will show.

We do not mean to assert that the State in granting a charter can not prescribe conditions upon the performance of which the continued existence of the corporation may be made to depend, and that it can not make the failure to perform the conditions operate of itself and without judicial action a divestiture of the corporate privileges. A compliance with the conditions prescribed by article 4278 of the Revised Statutes in reference to railway companies organized under the general law was held by this court necessary to prevent a termination ipso facto of the corporate existence in whole or in part of such companies. Bywaters v. Railway, 73 Tex. 627. The words "forfeit its corporate existence and its powers shall cease," etc., in the article cited, were held to import that the provision should be self-executing. Similar language in the statutes of other States has received a like construction. Railway v. Railway,45 Cal. 365; Matter of Brooklyn Railway, 72 N.Y. 245. When apt words are used to express the intention that the forfeiture shall take place upon the happening of a contingency without the necessity of a judicial declaration, then the courts will give effect to that intention whenever the question is presented in a judicial inquiry. But the language employed in the charter under consideration is that upon the failure of the company to construct its road to San Antonio within the prescribed time, "then this charter shall be forfeited." It is to be noted that the language quoted neither prescribes nor indicates the manner of forfeiture. In cases where such words are employed the uniform construction is that they prescribe a ground of forfeiture, and that the manner must be by a judicial proceeding instituted directly for that purpose. We doubt if any case can be found in which the words "shall forfeit its charter," or "its charter shall be forfeited," have been construed to provide a forfeiture which is to take effect by the mere happening of a contingency. In that connection the term "forfeit" has been imbued with a technical signification, and is the word universally used in charters for prescribing the grounds upon which a judicial forfeiture may be claimed. This is illustrated by the article of the Revised Statutes above cited (art. 4278), and article 4280 in the same chapter. Article 4278 provides that upon the failure of the railways organized under that title to build certain sections of the road as therein provided, the corporation shall "forfeit its corporate existence and its powers shall cease as far as it relates to that portion of said road then unfinished, and shall be incapable of resumption by any subsequent act of incorporation." Article 4280 provides that any railway corporation that shall neglect to make its annual report as required by law after being notified by the Comptroller, "shall forfeit its charter." The change in the language clearly shows the intention or the Legislature. By the former article it intended to provide a forfeiture without judicial action for a failure to complete so many miles of railway within stated periods. By the latter the intention was to prescribe merely a ground of forfeiture which the State could enforce should it so elect by a direct proceeding in a court of justice.

The Supreme Court of Massachusetts has held that where a charter provides that in case the corporation fails to comply with its provisions "this corporation shall thereupon cease to exist," it can only be determined that it has ceased to exist in a suit brought directly to declare the forfeiture. Briggs v. Canal. Co., 137 Mass. 71, and cases cited. This is in conflict with the decision of this court in Bywaters v. Railway, supra, from which we have no disposition to recede, but it supports our conclusion as to the effect of the words, "then this charter shall be forfeited," in the special act of incorporation now under consideration.

For the reasons given we conclude that the appellant must be treated as operating under an existing charter on the 19th day of November, 1876, the day on which the Act of August 16, 1876, went into effect. This brings us then to the construction of that act.

Omitting certain provisions which throw no light upon the question before us, the act reads 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 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; * * * provided further, that this act shall not be construed to renew or continue any right to companies who have failed or may fail to comply with the terms of their charters with reference to the completion of portions of their roads in stated times; provided further, that the provisions of this act shall not be so construed as to grant the aid herein provided for to any railroad that has already received or is otherwise entitled to receive aid from the State to the amount of sixteen sections of land to the mile."

It is clear, we think, that the appellant company is included within the meaning of the words "any railroad company heretofore chartered," and that it was entitled to receive lands for portions of its road constructed after the act went into effect, unless it be excluded by the first proviso which appears in the section quoted. The construction of that act as applicable to the work done by the appellant company presents a serious difficulty. We think the proviso should be construed as if it read, "this act shall not be construed to renew any right to companies that have heretofore failed, or to continue any right to companies that may hereafter fail, to comply with the terms of their charters," etc. If the company had ever had the right to a grant of lands for constructing its road to San Antonio, having at the time the act took effect failed to comply with the law for building to that point within the time fixed by its charter, the acts amendatory thereof, and the general laws which granted relief to said railway companies in that particular, it was in effect excluded by the proviso from the benefit of the act.

The Buffalo Bayou, Brazos Colorado Railway Company had by special acts and by the general law of 1854 the right to receive lands for each section of twenty-five miles of railway constructed, but by a special act of February 4, 1854, it was restricted to an extension of its road to Austin, and to a line extending thence to a connection with any road running north of Austin to the Pacific Ocean. Spec. Laws 1854, pp. 69, 70. The privilege of constructing a railway to San Antonio was conferred by the special act of 1870, which recognized the present corporation as the successor of the Buffalo Bayou, Brazos Colorado Railway Company, and authorized the change of name. At the date of that act the power to grant lands in aid of the construction of railways had been taken from the Legislature by the Constitution of 1870, and all laws making such grants impliedly repealed except as to existing rights. Const. 1870, art. 10, sec. 6. It follows that until the act of 1876 went into effect the appellant had never had any right to acquire lands from the State by the construction of its line to San Antonio, and consequently there was no right in that respect which but for the proviso in question would have been renewed.

Does, then, the appellant corporation come within the meaning of the words "companies who * * * may fail," as found in the proviso? If the statute is to be construed as speaking from the time it took effect, and not from the date of its passage, then the appellant is not included. It had already failed to comply with the law with reference to building to San Antonio when the act went into effect. At the date of the passage of the statute it had not failed. It still had until the adjournment of that session of the Legislature to complete its road to the point named in compliance with the laws. We apprehend that no universal rule of construction can be adopted when a statute which makes a distinction between future and past transactions is passed upon one day to take effect upon another, but we think the general rule is that a statute speaks from the time it becomes a law, and that what has occurred between the date of its passage and the time it took effect is deemed with respect to the statute a past transaction. This is in analogy to the rule for the construction of wills. Price v. Hopkins,13 Mich. 318; Charles v. Lamberson, 1 Clark (Iowa), 442; City of Davenport v. Railway, 37 Iowa 624; Gilkey v. Cook,70 Wis. 133; Jackman v. Garland, 64 Me. 133; Railway v. Barbee,74 Ind. 169. This rule should not be applied when the language of the act shows a contrary intention. But we find nothing in the statute under consideration which evinces an intention that the date of its passage rather than that on which it was to take effect was to be considered the dividing point between the future and past failures contemplated in the proviso.

Our conclusion being that the appellant company had never acquired any right to earn lands by the construction of this particular line of road before the passage of the Act of August 16, 1876, and having already failed to construct to San Antonio within the time required by its contract and the general laws of the State, it follows that the privilege conferred by that act was neither a renewal of a lost or forfeited right nor the continuance of one existing when the act took effect. The appellant therefore is not excluded by the letter of the statute from benefits conferred by it. Whether it comes within the spirit of the proviso or not is not so clear. The Legislature may have intended to exclude from participation in the land grant all companies that had made default in the particular mentioned in the proviso, or it may have intended to exclude only those in default to whom the State's bounty had been extended. There was reason for making a distinction between those who had failed without the land grant and those who defaulted notwithstanding the very liberal terms which had been offered them by the State as an inducement to complete their works in accordance with the terms of their charters. The default of such companies was of a graver character than that of those to whom the right to acquire land had never been extended. The provision in reference to companies that had an existing right to acquire lands and that might fail in future, is in harmony with the same idea. Being aided by a grant of lands, they were required to build in accordance with their charters, under penalty in case of default of losing the benefits of the act.

For these reasons we strongly incline to the opinion that railway companies who had failed to comply with the law in regard to the construction of their roads within specified times, and who had not been entitled to participate in the State's bounty, were not intended to be excluded from the benefits of the statute under consideration. But it may also be remarked that in the years 1875 and 1876 the people of those sections of the State which were still without railways complained loudly of the policy which had led to the prohibition of grants of the public domain to aid in the construction of these public improvements, and that they condemned as unfair the repeal of the law before those portions of the State had enjoyed any benefit from it in the way of securing facilities for transportation. The complaint was certainly well founded, and it may be that these considerations may have induced the Legislature to deprive no company with an existing charter of the benefits of the act to whom a right to acquire lands had never been extended.

But whether we are correct or not in these conclusions, there is certainly such doubt about the meaning of the proviso in question as to justify us in calling in aid the practical construction placed upon it by the executive department of the government. The evidence in the case shows that the certificates were issued upon the report of the State inspector, which was approved July 9, 1877, by R.B. Hubbard, then the Governor of the State. The Governor before acting on the report requested the opinion of the Attorney-General upon the question of the right of the company to receive lands under the Act of August 16, 1876, and called attention to the fact that the company had failed to complete its road to San Antonio within the time prescribed in its charter. The opinion of the Attorney-General was that the company was entitled to receive certificates for lands under the act in question. It appears incidentally in the correspondence between Governor Hubbard and the Attorney-General that the immediate predecessor of the former had made the same ruling.

We are brought then to the original question in the case, Did the Act of August 10, 1876, entitle the appellant company to receive lands for the construction of its sidings? The language of the statute in so far as it bears upon this question is: "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 find put in good running order." As we view the provision a solution of the question will be facilitated by first determining what is meant by the words, "a section often miles or more of its road." When we speak of a section of ten miles of railway, do we mean ten miles of road in lineal extension, or do we mean ten miles of track made up together of the main line and of sidetracks used in connection with it? Could a railway company lawfully claim lands under the act for the completion of eight miles of a line of road and two of sidetrack? Each of these questions fairly admit of but one answer. A section of ten miles of a railway obviously means a section of its road extending ten miles in a continuous line. Less than ten miles of the line of the road with sufficient sidetracks used in connection therewith to make up ten miles do not constitute a section of ten miles of railway. A section of ten miles means a section ten miles long, and it can not without doing violence to the words be tortured into meaning anything else. This is too plain to admit of argument.

Having determined that a section of ten miles means a portion of the line of the road ten miles in continuous length, we then have the question, What is meant by the subsequent words, "be entitled to receive * * * sixteen sections of land for every mile of its road so completed," etc.? Does it mean that the companies were to receive lands for every mile of such section? or does it mean they are entitled to receive them not only for every mile of the section but also every mile of sidings constructed therewith? We are of the opinion that the former is the only proper construction that can be given to the words. Upon the completion of a section of ten miles or more of railway the companies are to receive a certain quantity of land for every mile of its road so completed. The words, "every mile of its road so completed," clearly refer to the section and nothing else. 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 sidetracks be construed to be within the purview of the statute when they are not mentioned by the distinctive appellation by which they are commonly know? It is true that sidetracks 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. It is rather that it was intended to induce by a compensation in lands the construction of the line of railway proper, knowing that the construction of the sidings would follow as a necessary incident of the main enterprise. It was not the purpose to confer a mere bounty. It was to grant lands as a consideration to induce the extension of existing lines of railway, and the construction of new lines. The good to be accomplished was not the increase of railway facilities by the construction of sidetracks, but the projection of the railways themselves into those sections of the State that were without the facilities of transportation. The extension of railways was what was desired, and it is to be presumed that to secure these ends was the object for which the lands were granted. It is therefore a reasonable conclusion that it was intended in computing the mileage for which the lands were to be granted to take into account the miles of lineal, extension only. Both the letter and spirit of the act clearly indicate to our minds that such is its only proper construction.

But it is insisted that in determining this question we should be governed by the construction of the statute acted upon by the executive department of the State government, and it is claimed that "during the administration of Governor Pease and on down through all administrations, engineers appointed by the Governors for that purpose examined and measured the roads as constructed from time to time made their reports of number of miles of main and side track, which reports were examined and approved by the Governors, and the Commissioners of the General Land Office issued certificates and patents for land for both side and main track, and in two instances reports were made and approved for sidetrack alone."

But it must be borne in mind that prior to 1876 the certificates were issued and grants of land made to railway companies by virtue of the Act of January 30, 1854., Pasch. Dig., art. 4945, et seq. The first section of that act reads as follows: "Any railroad company chartered by the Legislature of this State heretofore or hereafter constructing within the limits of Texas a section of twenty-five miles or more of railway shall be entitled to receive from the State a grant of sixteen sections of land for every mile of road so constructed and put in running order." It must be conceded, we think, that this language in so far as the question before us is concerned is substantially the same as that contained in the granting clauses of the act under consideration. But the twelfth section of the Act of 1854 contained the following language: "The provisions of this act shall not extend to any company for more than a single track road with the necessary turnouts." This provision is not contained in the Act of August 16, 1876. Its meaning is not clear to our minds. Whether it was intended to be merely descriptive of the railways which should be empowered to receive the grants, or whether it was intended to grant lands for the sidings, we are not called upon to decide. It must be conceded, however, that it admits of the latter construction, and affords a reason for the interpretation placed upon the act by the executive officers of the State, which without it would not be apparent to our minds. The construction of that act, therefore, does not aid us in construing the latter statute. The omission from the latter act of the language quoted does not tend to support the construction claimed by appellant. The failure to insert it, if entitled to any weight, tends rather to the opposite conclusion. It may have been omitted with a view to deny the right to receive lands for the turnouts.

It is true, however, as claimed, that reports for sidings were approved by Governor Hubbard under the Act of 1876, and that certificates therefor were issued by the commissioners; but it is also true that Governor Roberts refused to approve the State inspector's reports in so far as they embraced the mileage of the sidetracks. But conceding for the sake of the argument that the construction of the Act of 1876 by the executive department has been uniformly favorable to the claim of the appellant, does it follow we are to be guided upon this question by that construction? We recognize the rule that in cases of doubt the contemporaneous construction of any department of the government is entitled to great weight, and is sometimes given a controlling influence. That rule we have applied in construing another statute in the present case. But it seems to be well settled that when the meaning of the language in a statute is clear it has no application. Suth. on Stat. Con., sec. 307, et seq. If the words contained in the act under consideration were of doubtful meaning we could not lightly disregard the construction given them by the officers of the State who were called upon to act upon them. But their import appears too clear to admit of any reasonable doubt. We are constrained, therefore, to follow our own convictions, regardless of the views manifested by the acts of the officers of the executive department, and to hold that the appellant was not entitled under the Act of 1876 to receive lands for its sidetracks.

But did the facts that more certificates were issued to the appellant than it was entitled to receive, and that those issued for the sidings were not distinguishable from those issued for the lineal extension of the road, justify the court in holding all the certificates void and rendering a judgment in favor of the State for a recovery of all the lands? There was no concealment, artifice, or fraudulent device of any character in procuring the certificates for the sidings. The mileage of the sidetracks was reported as such by the State's inspector and the report was approved by the Governor. The certificates for the sidings were openly demanded and were issued by the Commissioner of the General Land Office without question under what might reasonably have appeared to him the uniform ruling of his office. Even admitting that fraud would vitiate the entire issue of the certificates into which the computation for the sidings entered (a doctrine we are not called upon to announce), that rule would not sustain this judgment. This is a case of an excessive grant wholly untainted by fraud. The case of Maxey v. O'Conner, 23 Tex. 234, was similar in principle to this. It involved a question of excess in a grant of lands to Powers Hewitson under their colonization contract. In that case the court say: "If the grant was excessive, as contended, and the grantees actually received title, whether in one tract by one title of possession or in different tracts by several titles, to more land than they had the right to demand for the number of families introduced by them, it is not perceived that the case is different in principle from any other excessive grant. The excess does not render the grant void in toto, but only voidable at most by the government." The same doctrine was recognized by the Supreme Court of the United States in White v. Burnley, 20 Howard, 247, and it is unquestionably the law. The rule is manifestly just, and the remedy of the State is to reform the grant and to recover the excess. It follows that there is error in the judgment, for which it must be reversed.

What specific relief should be granted in each particular case we do not deem it proper to determine. There may be cases in which the rights of purchasers are involved, and the establishment in advance of any general rule might operate to influence a determination of these rights before they have had an opportunity of being heard. When certificates have been issued for sidings alone, the simple remedy is to declare them void and to give judgment for the recovery of the lands. When certificates for railroad proper and certificates for the sidetracks are blended in one series, and all the lands are still claimed by the company, the remedy would seem to be to reform the grants in one proceeding and to recover upon equitable principles the entire excess. When valid certificates only are issued the company has the right to select for their location any of the unappropriated public domain of the State which is subject to location under the constitution and laws of the State. Therefore in a proper case it would seem not inequitable to permit the company to select the lands it should be adjudged to retain and to give judgment for the State for what remains. It will operate no injustice to the State to permit that to be done, upon the final adjudication of the controversy, which the defendant had the right to do when it made its locations.

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

Reversed and remanded.

Delivered June 27, 1891.

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