
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. STATE.
    (Supreme Court of Texas.
    Feb. 11, 1914.)
    1. Railroads (§ 44) — Location—Constitutional Provisions — Waiver.
    Const, art. 10, § 9, providing that no railroad shall pass within three miles of a county seat'without, passing through it and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills, etc., provided such town or its citizens shall grant the right of way and ground for depot purposes, is intended for the benefit of the public desiring to or required to visit the county seat, and is mandatory, so that the duty imposed thereby cannot be waived by the town or its citizens.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec. Dig. § 44.]
    2. Railroads (§ 44) — Location of Road — Right of Wat and Depot Grounds.
    Under Const, art. 10, § 9, requiring every railroad passing within three miles of a county seat to pass through it and maintain a depot therein unless prevented by natural obstacles, provided that the town or its citizens shall grant the right of way and ground for depot purposes, and under Rev. Civ. St. 1911, art. 6549, in similar terms, the duty of the citizens to pay for the right of way and depot grounds does not arise until the railroad has surveyed its line and designated its depot site; and hence their failure to take such action before such survey is no defense to an action to compel a construction of such fine and depot.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 101; Dec; Dig. § 44.]
    3. Courts (§ 501) — Effect of Appointment on Pending Suit — Federal Receivership —Effect as to State Regulation.
    The federal court’s appointment of a receiver for a railroad, vesting him with the right to possess its property, left the state no power to require it to do any act which would interfere with such possession, but was no obstacle to mandamus from a state court, requiring the corporation to construct a line through a county seat in accordance with the state’s constitutional and statutory provisions, though such receivership should be considered in enforcing obedience.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1409; Dec. Dig. § 501.]
    4. Mandamus (§ 132) — Railroads—Performance of Duties.
    Where a railroad company fails and refuses to perform its constitutional and statutory duty to construct a line through a county seat and maintain a depot therein, the district court may award a writ of mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 266, 267; Dec. Dig. § 132.]
    5. Mandamus (§ T78) — Relief Granted — Suspension of Enforcement of Writ.
    Where a receiver has been appointed for a railroad company, rendering it legally impossible for it to comply with mandamus, requiring it to construct a line through a county seat and maintain a depot therein, enforcement should be suspended until conditions so change as to put it in the power of the corporation to obey.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 396-400, 410; Dec. Dig. § 178.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by the State of Texas against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment of the Court of Civil Appeals (155 S. W. 561), affirming a judgment of the district court in favor of the state, defendant brings error.
    Reformed and affirmed.
    H. S. Garrett and Hill, Lee & Hill, all of San Angelo, Gregory, Batts & Brooks, of Austin, and Blanks, Collins & Jackson, of San Angelo, for plaintiff in error. B. F. Looney, Atty. Gen., Luther Nickels, Asst. Atty. Gen., and Snodgrass, Dibrell & Snodgrass, of Coleman, for the State.
    
      
      tor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series <& Rep’r Indexes
    
   BROWN, C. J.

For statement of the case we copy from the carefully prepared opinion of Judge Rice as follows:

“This suit was brought by the state of Texas, through its Attorney General, in the district court of Travis county, on the 7th of July, 1911, against appellant for a writ of mandamus or mandatory injunction to compel it to construct its line of railway through the town of Sherwood, the county seat of Irion county, and establish and maintain a depot therein, and for a penalty of $5,000 for having willfully failed and refused to do so, alleging that said company had constructed its road within less than three miles of said town (which is unincorporated, containing about 400 inhabitants) without passing through the same, and without establishing and maintaining a depot therein, as required by the Constitution and laws of this state, the citizens of said town having tendered to it, prior to the construction of its road, a practicable right of way through its limits, and sufficient grounds for ordinary depot purposes therein; further alleging that there were no natural obstacles to prevent said railroad from passing through same, such as streams, hills, or mountains, and that the state of Texas and the people thereof have an interest in and right to have said company obey and comply with the provisions of the Constitution and laws of tMs state, and that they have an interest in having a depot located and maintained in said town for the convenience and transaction of their business with the county officials of said county, and in attending to and transacting business in and with the various courts in and for said county, and for receiving and delivering passengers and freight thereat. And that such failure on the part of appellant to comply with the Constitution and laws of the state in this respect will subject the people of the state to great inconvenience and expense that they would not otherwise have been subjected to, if appellant should construct a railway through said town and establish and maintain a depot therein.

“Prior to the institution of this suit, certain of the citizens of Irion county, residents of Sherwood, instituted a suit in the district court of Tom Green county against appellant, which is still pending therein, to compel it to construct its roadway through said town of Sherwood and establish and maintain a depot therein; the allegations of the petition in which case are, in many respects, similar to those in the instant case, and the pendency of which suit is pleaded in abatement hereof. See Felton v. Kansas City, Mexico & Orient Railway Co., 143 S. W. 650.

“Subject to said plea, and after general denial and special exceptions and specific denial of material allegations in the petition, appellant relied upon and pleaded a number of affirmative defenses, summarized in its brief as follows:

“(a) The four-year statute of limitation.

“(b) Natural obstacles preventive of the construction of the road nearer to the town of Sherwood.

“(e) That the matter of the location' of the road had been settled between the railway company and the citizens of Sherwood by virtue of the contract hereinbefore referred to, and specially pleading such contract in bar of this action, and that the citizens of Sherwood, and the town of Sherwood, and the state through them, was estopped to maintain this suit by virtue of said contract and of the fact that the railway company had acted thereon and had expended large sums of money in the construction of its road, which would have been lost if the route had been changed when it first had any intimation that the route, as located, was not satisfactory to some of the citizens of Sherwood.

“(d) That the railroad company had complied with all of its legal and constitutional obligations by securing a right of way through the corporate limits of the town of' Sherwood while it was incorporated, and were engaged in the construction of its railroad when the corporation was abolished, and that its legal status had already been fixed and could not be changed by the ex parte action of such town and its citizens in abolishing its corporation.

“(e) That the citizens of the town of Sherwood and such town, having for a long time known the location of the line of the road, and that the road was being constructed thereon, and having procured and tendered to the railroad company the identical right of way upon which the road was constructed, and knowing that the railroad company was relying on this contract, and was expending large sums of money in the construction of its railroad on this located line, had been guilty of laches in asserting any right, and were each and all estopped to demand the construction of the road at any other place, and that the state, being in this case merely a formal party, and having instituted this suit for the benefit of Sherwood and its citizens, was also estopped.

“(f) That no tender of right of way or depot grounds had ever been made to the railroad company prior to the institution of this suit.

“(g) That at the time of the institution of this suit the railroad had already been constructed past the town of Sherwood, and that the suit came too late, and that to build an additional line to Sherwood would not be justified by the traffic to be obtained therefrom, and the cost of construction and maintenance thereof would be burdensome and an improper interference with the carriage of interstate commerce in which the road was engaged.

“The case was tried before the court without a jury, and, during the progress thereof, appellant company was placed in the hands of receivers by an order of the United States District Court for the Northern District of Texas, made on the 9th day of March, 1912; and, before the trial of the case had concluded, appellant filed its motion to dismiss this suit, or to suspend it in order to make the receivers parties, which motion was overruled by the court. And the trial of the case proceeded, which resulted in the court’s overruling all the contentions of appellant, and rendering judgment in .favor of the state for the sum of $2,500 penalty, and further ordering that a permanent and final writ of mandatory injunction should issue, compelling appellant, within 30 days from the date of such order, to survey, locate, and establish a reasonable, feasible, and practicable route for its right of way into and through said town, and to survey and locate a reasonable and practicable depot site for ordinary depot purposes within said town, and, as soon as the same should have been done, to give notice in writing to the Attorney General of the state of that fact, and of the completion of the said survey, location, and establishment of said right of way and depot site in said town.”

It is unnecessary to notice matters which were adjudicated by the court; the judgment made all proper and necessary provisions to protect the railroad company.

Tlie Court of Civil Appeals found and filed this statement of the facts:

“Conclusions of Eact.
“The court finds and concludes from the evidence that the following facts were established, viz.:
“First. That the town of Sherwood is an unincorporated town, situated on the east side of Spring creek in Irion county, Tex., and is now, and has been continuously since the organization of said county, the county seat of said county, and that its boundaries and location are easily ascertained on the ground by the location, collection, and aggregation of the houses constituting said town, * * * as well as the adjacent lots and blocks on which are situated houses in said town, and all of which is fully shown and described on the map of said town set out and included in the judgment in this cause, and recorded in the minutes of this court, and which map shows the "outside boundaries of said town.
“Second. That the defendant railway company has constructed and built, and now owns, maintains, and operates, its line of railroad up and along the west side of Spring creek and passing within a distance of less than three miles of said town of Sherwood, to wit, about 1¼ miles from said town, but does not pass through said town, and defendant has not established and is not maintaining a depot in said town.
“Third. That there are no natural obstacles, such as .hills, streams, or mountains, preventing the defendant from building and constructing its line of railroad into and through said town of Sherwood, or from establishing and constructing and maintaining a depot in said town, but that defendant can survey, locate, establish, construct, and maintain a feasible and practicable route for its railroad through said town, and can establish, construct, and maintain a depot in said town at a convenient and accessible point therein.
“Fourth. That the -citizens of said town are now, and have at all times since the location of said defendant’s railroad in said county been, ready, able, and willing to grant to the defendant railway company a right of way through the limits of said town, and sufficient grounds for ordinary depot purposes in said town, free of any cost to the defendant, on whatever route through said town defendant might select.
“Fifth. That defendant can survey and locate a reasonable and feasible and practicable route for its right of way and roadbed through the limits 'of said town, and sufficient grounds for ordinary depot purposes in- said town, and can do so within 30 days, and which is a reasonable time therefor.
“Sixth. That, after defendant shall have surveyed and located its said right of way through said- town and depot grounds therein, the citizens of said town of Sherwood can secure a grant of the said right of way and depot grounds within 90 days thereafter, and which is a reasonable time therefor, unless the same, or some part thereof, shall have to be secured by condemnation proceedings, and in such ease said citizens can ascertain that fact and execute an obligation to the defendant to hold it harmless from any cost or expense incident to such condemnation proceedings, and that they can do so within said period of 90 days aforesaid.
“Seventh. That after said grant of said right of way and depot grounds shall have been - secured, as aforesaid, defendant can construct and build and put in operation its said railroad through said town, and said depot in said town, and can do so within 90 days after said right of way and depot grounds shall have been granted and secured, by voluntary conveyances, or by condemnation proceedings as hereinbefore provided for, and said time is reasonably sufficient therefor.
“Eighth. That defendant has heretofore surveyed, located, established, and constructed its railroad within three miles of said town of Sherwood, the county seat of Irion county, without passing through said town, and without establishing and maintaining a depot therein, and that defendant made no efifiorts to survey, locate, establish, or construct its railroad through said town or a depot in said town, although it could have done so at a reasonable cost, but defendant purposely and intentionally constructed its railroad passing said town, and within the distance of less than three miles therefrom, and established a station at Mertzon, a new rival town, about three miles away from said town of Sherwood.
“Ninth. That had defendant surveyed, located, established, and constructed its railroad through said town of Sherwood, instead of where it did construct the same, its said line of railroad would have been about seven-tenths of one mile shorter than its present line, and the cost of expense and maintenance and saving in operation of the line through Sherwood will substantially offset any difference in the cost of construction between said line through Sherwood and defendant’s present line, and the difference, if any, between the cost of construction, maintenance, and operation of the two lines is so slight and inappreciable as to be not unreasonable.
“Tenth. That defendant has never surveyed or located any route for its railroad through said town of Sherwood, or any point for a depot in said town, and never gave the citizens of said town, or said town, an opportunity to grant it a right of way through the limits of said town, and sufficient grounds for ordinary depot purposes, although said town and said citizens were ready, able, and willing to do so at all times.”

The judgment of the trial court was affirmed by the Court of Civil Appeals, and tlie case is before this court on writ of error.

Article 10, § 9, of our Constitution reads: “No railroad hereafter constructed in this state shall pass within a distance of three miles of any county seat, without passing through the same, and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills or mountains; provided, such town or its citizens shall grant the right of way through its limits and sufficient ground for ordinary depot purposes.”

The Legislature enacted a statute to enforce that provision, which reads: “Article 6549. (4491) Road shall Pass Through County Seat, when. — No railroad hereafter con-' strueted in this state shall pass within a distance of three miles of any county seat without passing through the same and establishing and maintaining a depot therein, unless prevented by natural obstacles, such as streams, hills or mountains; provided, such town or it citizens shall grant the right of way through its limits and sufficient ground for ordinary depot purposes.”

The constitutional provision was intended to subserve the interests of the public who desired or were required to visit the county seat, and was not intended to benefit the owners of property in the town — that might or might not be the result. The Constitution is mandatory, and the duty imposed could not be excused or waived by the citizens of the town. The railroad company must have surveyed its line and designated its depot site before it could demand of the citizens to procure the right of way and depot grounds.

Miller v. G., C. & S. F. Ry. Co., 65 Tex. 667: “In order to put the citizens at default the appellee should have selected the most practicable route, and surveyed and established it into the town, to within half a mile of the courthouse, and have selected, surveyed, and marked off the grounds necessary for depot purposes, and then have notified the citizens composing the citizens’ committee appointed to secure the right of way and depot grounds, and made, in the language of the right of way bond, ‘demand’ of the same, for the purposes stated. Not until this was done could the citizens have proceeded to secure, by purchase or condemnation, the titles to the land. Until this was done, they could not have known what ground to secure, by purchase or legal process; nor had the citizens the power to have instituted proceedings in their own names, to condemn the land. It was alone by the railway company that these proceedings could be instituted.” The duty to pay for the right of way and depot grounds did not devolve upon the citizens until the survey was made by the company ; hence the failure of the citizens to take action in that matter is no defense to this action by the state.

■From the facts as stated by the Court of Civil Appeals it appears that the railroad company has complied with neither the statutory nor the constitutional requirements. There is no question of law to be discussed. No 'error is shown. We see no ground for reversing the judgment unless it be that the writ of mandatory injunction was improperly granted, which we will now examine.

The facts of this case justify the judgment awarding the writ of mandamus. The railroad company had failed and refused to perform an unquestionable duty to the public, and the district court had authority to compel the performance of that duty. The appointment of a receiver by the federal court did not interfere with the jurisdiction of the state court over the corporation, and would not prevent the enforcement of any judgment against the corporation which would not interfere with the receiver’s possession and control of ■ the property. Power & Water Co. v. City of Palestine, 91 Tex. 540, 44 S. W. 814, 40 L. R. A. 203; Calhoun v. Lanaux, 127 U. S. 634, 8 Sup. Ct. 1345, 32 L. Ed. 297.

What effect has the appointment of the receiver for the railroad property in this case? When the receiver was appointed, right of possession of the property of the corporation vested in the receiver, and the state court had no power to require the corporation to do any act which would interfere with the possession by the receiver of its railroad track or other property. But the state court had jurisdiction to determine the issues between the state and the corporation. See authorities cited above. The proceeding in the United States District Court furnishes no obstacle to granting the mandatory process against the corporation, but is to be considered in the enforcement of the command. Of the granting of the writ'of mandamus, Merrill on Mandamus, § 78, states the rule thus: “This writ will be denied when, for any cause, it becomes legally impossible, or rather ceases to be a legal duty.”

The district court having granted the writ, and conditions having arisen which renders it legally impossible for the corporation to comply, we believe its enforcement should be suspended until conditions shall so change as to put it in the power of the corporation to obey. We find no reversible error in the judgment. It is therefore ordered that said judgment be so reformed as to suspend the issuing of the mandatory writ until the railroad shall be restored to the corporation, or it be otherwise enabled legally to obey the mandate of the court, and, as thus reformed, the judgment is affirmed, with costs against the plaintiff in error.  