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railroad from a point at or near Washburn in a northeasterly direction to Panhandle, the charter thereof providing that it would establish and maintain its principal offices at Washburn; that said railway company entered into an agreement with Montgomery, by which, in consideration of the grant of right of way and depot grounds, it agreed to forever maintain its road, depot, and principal offices at Washburn; that the right of way and depot grounds were taken possession of, the road was constructed, and the depot established, and the same were used and occupied until the same was purchased by appellant under and by authority of an act of the Twenty-Sixth Legislature in 1899, and the same was taken possession of by appellant and operated as a part of its line until about April, 1898, when appellant wrongfully and will fully took up and removed its tracks from Panhandle to Washburn, and ceased to operate that part of its line, and permanently abandoned and discontinued the same. By the pleadings appellant was charged with knowledge of the conI can't tell what officers I had this agreetract of the Panhandle Railroad, but disregard- ment with as to the establishment and mained the rights of appellee which were obtained by tenance of the general offices or the building of his purchase on December 1, 1906, by all of the the road, or the establishment of its station and 4 sections of land owned at that time by Mont- depot on my land, but think it was with the gomery, together with all the covenants, rights, president, who, I think, was J. P. Smith, Morprivileges, and appurtenances belonging or ap- gan Jones, and probably some of the other ofpertaining to the same; that when Montgom-ficers of the company named in the charter, but ery laid off and platted the town of Washburn I do know that my agreement with them was he included about 600 acres, consisting of about that this road, with its depot, station, and prin5,000 lots, and published a map and plat, which cipal place of business, should remain on the showed the donations to the Panhandle Railway land that I donated forever, and I would not Company, and that it was replatted by appel- have donated this land for any other purpose, lee, who owned 1,603 acres of land out of the 4 except a permanent one.' sections, in addition to 5,388 lots, as shown by the map of Washburn; that said lots were worth, prior to the removal of the railroad, $30 each, and the acreage property $40 an acre, but by the removal the lots were reduced in value to $15 each, and the acreage property to $20 an acre, the total depreciation being $112,

"Montgomery swore that he donated depot grounds, right of way-about 154 acres-to the Ft. Worth & Denver and the Panhandle roads, and 'the consideration was the building, establishment, and maintenance of both railways, with their depots and stations my land, both companies taking possession of the land so donated and using it as they desired for railway purposes.' He made a deed of the land donated to the Ft. Worth & Denver Road, but gave no deed to the Panhandle Road. He further testified: 'I was one of the incorporators of the Panhandle Railroad and a stockholder and director of the company, and its charter provided that its railway should be built over my land, its depot erected, located, and maintained thereon, and that its principal office should be and remain there forever, and that was the understanding and agreement between

us.

999

970.

"Appellant answered by general and special demurrers, general denial, and special pleas, which gave a history of the default of the Panhandle Railway Company in the payment of certain bonds, the foreclosure of a mortgage, a sale of the road and its properties and franchises to Edward Welder, and his sale on January 1900, to appellant by virtue of the authority of an act of March, 1899, of the Legislature of Texas. It was further answered that by an act of the Legislature, of date March 26, 1907, appellant had been authorized to take up and abandon its track and road from Washburn to Panhandle, and a plea of limitations was also

filed."

[1] The Court of Civil Appeals having reversed the judgment of the district court and rendered judgment for the railway company, it will be the duty of this court to reverse that judgment if the testimony rendered by the plaintiff on that issue would be sufficient to sustain the judgment of the trial court. The rule is that the Court of Civil Appeals may reverse a judgment on the weight of the testimony, but that court cannot render judgment if the evidence, when considered in the light most favorable to the party in whose favor the judgment is rendered, would sustain the judgment of the trial court. In such case the Court of Civil Appeals must remand the case to the district court.

In order to test the correctness of the judgment of the Court of Civil Appeals under the rules stated, we will now state that portion of the evidence which is most favorable to

R. E. Montgomery testified to the following facts:

This evidence was contradicted by the witnesses of the railroad company.

The charter of the Panhandle Railway Company contains this statement:

ration shall be located and maintained at Wash "The principal business office of said corpoburn, in the county of Armstrong, in the state

of Texas."

We find in the statement of facts a copy of the various acts of the Legislature which authorized the purchase of the Panhandle Railway by the Southern Kansas Railway Company, the defendant in error. The law also authorized the Southern Kansas Railway Company to take up the track of the Panhandle Railway from Washburn to Panhandle. We also find the following provision in the said law:

"The enactment of this law shall not preclude any person who may have a legal cause of action against said Southern Kansas Railway Company for damages, if any, occasioned by reason of the taking up and destruction of said track from prosecuting said cause of action in the proper court having jurisdiction thereof."

The foregoing states all of the evidence that we find in the record favorable to the plaintiff in error, and upon that evidence we will examine his right to a reversal of a judgment of the Court of Civil Appeals.

For the discussion of the question of law before us we will assume: First, that the plaintiff in error is entitled to recover from the defendant company whatever Montgomery could have recovered under the facts of this case; secondly, we will assume that Montgomery made a contract with one or more of the directors of the Panhandle Railway Company, to the effect that the depot and principal offices of the corporation

the claim was more strongly supported by evidence in that case than in this. In that case this court said:

town of Washburn, in consideration of the granting of the right of way and depot grounds mentioned in the opinion. We deem it unnecessary to copy into this opinion the "It will be observed that the statute places all statutory provisions which have already been authority of the corporation in the board of either copied or so stated as to be under-directors, and the power of the officers of the company depends upon the action of the board of directors in conferring authority upon them.

tood.

[2] Article 4367 of the Revised Statutes The fact that McCaulley was vice president of 1895 reads thus: the railroad company did not authorize him to make the contract in question; that power could only be derived from the board of directors. Yet we must keep in mind that it is not necessary that there should be express authority given, but whatever may be sufficient to justify the conclusion that the directorsthat is, the authorized body of the railroad company--had conferred this authority upon McCaulley, or had, knowing of his having exercised it, approved or ratified it in any way, would be sufficient. Missouri, K. & T. Ry. Co. v. Faulkner, 88 Tex. 651 [32 W. 883]. It is claimed that, under the by-laws of the corporation, the vice president was authorized, in the absence of the president, to exercise such authority as was given to the president, but there has been nothing adduced, so far as we are able to find, which tends to show that the board of directors ever conferred such authority upon the president himself. There is no direct evidence of the giving of authority by any officer authorized to do so to McCaulley to make this contract, and we must now determine from the evidence whether there was such approval and ratification as will bind the company. Gulf, C. & S. F. Ry. Co. Jones, 82 Tex. 156 [17 S. W. 534]. McCaulley could not ratify his own acts. A binding ratification must be based upon the acts of those who could have conferred the power to do the act, and must rest upon a knowledge of the facts. The ordinance granting consent of the city did not express the consideration that the company should locate the machine shops, roundhouse and offices at Sweetwater; therefore the use of the streets under that ordinance did not constitute a ratification of that which was not expressed in the known to the officers whose acts are relied upon ordinance, unless it is shown to have been as a ratification."

"Every railroad company chartered by this state, or owning or operating any line of railway within this state, shall keep and maintain permanently its general offices within the state of Texas at the place named in its charter for the locating of its general offices; and if no certain place is named in its charter where its general offices shall be located and maintained, then said railroad company shall keep and maintain its general offices at such place within this state where it shall have contracted or agreed or shall hereafter contract or agree to locate its general office for a valuable consideration; and if said railroad company has not contracted or agreed for a valuable consideration to maintain its general office at any certain place within this state, then such general offices shall be located and maintained at such place on its line in this state as said railroad companies may designate to be on its line of railway. And such railroads shall keep and maintain their machine shops and roundhouses, or either, at such place or places as they may have contracted to keep them for a valuable consideration received."

That article was construed in Kansas City, Mexico & Orient Railway Co. v. City of Sweetwater, 104 Tex. 334, 137 S. W. 1118. Assuming that there was a contract made between Montgomery and the directors of the railroad company for the location and maintenance of the depot, offices, etc., in Washburn, then the case would come within the terms of that article, and in that case Logue would be entitled to all of the benefits of the contract made by Montgomery.

[3] The right of the plaintiff in error in this case depends upon the two following articles of the statute:

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We could add no force to the conclusion there announced by a repetition of the argument made in that case. However, we will Ishow the contrast between the facts of the two cases, and the conclusion that the decision in the case must control this will necessarily follow. In that case it was assumed that the president or vice president of the railroad company made a contract with Sweetwater, by which it was agreed that, in consideration the city would give the railroad company permission to construct its lines upon a certain street, and operate its railroad upon that street, the railroad corporation agreed that it would construct its shops and maintain them at that place. The railroad company subsequently sought to remove the shops to San Angelo, whereupon an injunction was sued out, and a judgment was rendered denying it the right to do so. The case was brought by writ of error to this court, and the issue of law was distinct and clear as to whether the railroad company was bound by the contract of its president without ratification of the board of directors.

This court held that the president had no

under the direction of the board of directors, | acquisition of its property and business took and that the railroad company was not bound place before or after its conviction. by his action, unless it was adopted and approved by the board of directors, or that the board of directors, knowing of this contract and its terms, ratified the said action, or that with such knowledge and the use of the street by the railroad company the board by its action thereafter adopted such agreement made by its vice president. In that case the use of the street was open to everybody, and the trains operated upon it with the shop near by, but there was no knowledge of the contract or evidence that the terms of the contract had been brought home to the board of directors. The court said:

"We are of opinion that the railroad company is not bound by the alleged contract; that the use of the streets was not accepted as a consideration for the location of the offices, machine shops, and roundhouse at said city; and the city is not entitled to the injunction prayed

for."

[4] From the occupancy of the land under deed from Montgomery, no presumption could arise that a private agreement like this existed. The purchasing corporation was charged with notice of such burden or condition as attached by law. The writer would be unable to make this matter more satisfactory than is done by the quotation above. We simply add that the case before us has no facts upon which to rest its claim of a contract with the directors of the Panhandle Railway Company, without which no right was acquired by Montgomery against that company; therefore Logue has acquired no right against the defendant in error.

The judgment of the Court of Civil Appeals correctly administers the law of the case, and it is therefore affirmed.

PIERCE OIL CORPORATION v. WEIN-
ERT, Secretary of State. (No. 3182.)
(Supreme Court of Texas. June 10, 1914.)

[Ed. Note.-For other cases, see Corporations,

Cent. Dig. §§ 2574, 2575; Dec. Dig. § 651.*]

2. CORPORATIONS (§ 636*)-FOREIGN CORPORATIONS-POWER TO EXCLUDE, RESTRICT, OB REGULATE.

A foreign corporation's transaction of other than interstate business within the state is withhold, and as to which it may prescribe the only a privilege, which the state may extend or terms or conditions upon which it extends the right, and the corporation, seeking only a liin no position to complain of the severity of cense which the state is not bound to give, is its terms.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2505-2509, 2571; Dec. Dig. § 636.*]

3. CONSTITUTIONAL LAW (§ 82*)-Ex POST FACTO LAW RETROACTIVE OPERATION FOREIGN CORPORATIONS.

Under Rev. St. 1911, art. 7805, providing that when any foreign corporation has been convicted of a violation of the anti-trust laws, and its right to do business in the state has been forfeited, as provided in article 7802, no other corporation to which it may transfer its property and business, or which may assume its obligations, shall be permitted to incorporate or do business in the state, no question of the attainder of property is involved, since no sale of chaser of its property without its business is its property is prevented, and since the purnot excluded.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 149; Dec. Dig. § 82.*] 4. CORPORATIONS (§ 636*)—FOREIGN CorporaTIONS-EXTRATERRITORIAL EFFECT OF STATE ANTI-TRUST LAW.

Such statute exerts no extraterritorial power, as it prohibits only acts attempted within the state even though the prohibition may operate because of acts done without the state.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2505-2509, 2571; Dec. Dig. § 636.*]

Original petition for mandamus by the Pierce Oil Corporation against F. C. Weinert, Secretary of State. Refused.

H. S. Priest, of St. Louis, Mo., E. B. Perkins, of Dallas, and N. A. Stedman, of Austin, for plaintiff. B. F. Looney, Atty. Gen., and C. M. Cureton, Asst. Atty. Gen., for defendant.

1. CORPORATIONS (§ 651*)-FOREIGN CORPORATIONS-EXCLUSION FROM STATE-CONSTRUCTION OF STATUTE.

Under Rev. St. 1911, art. 7805, providing that when any foreign corporation' has been convicted of a violation of the anti-trust laws, and its right to do business in the state has been forfeited, as provided in article 7802, no other corporation to which it may transfer its property and business, or which assumes the payment of its obligations may incorporate or do business in the state, a foreign corporation, incorporated to acquire, and which purchased, took over, and assumed, the obligations of and carried on the business of a foreign corporation which had been, by final judgment, convicted of a violation of the anti-trust laws of the state, fined, and perpetually enjoined from transacting any but interstate business within the state, was prohibited from doing business in the state; the provision being intended to prevent the fictitious succession of a foreign corporation whose permit to transact its business had been forfeited, regardless whether the

PHILLIPS, J. [1, 2] The relator, Pierce Oil Corporation, is a Virginia corporation, It has heretochartered on June 21, 1913. fore made application in due form to the Secretary of State for a permit to do business in the state, tendering in that connection the anti-trust affidavit required by law, and all lawful fees. Upon his refusal to issue the permit it has filed this motion for leave to file its petition for mandamus to compel its issuance. On June 1, 1907, in a suit by the state in the district court of Travis county, the Waters-Pierce Oil Company, a foreign corporation chartered in Missouri, was by final judgment convicted of violation of the anti-trust laws of this state, for which a large fine was imposed, its permit to do business canceled, and an injunction issued per

petually enjoining it from transacting any but | plication to such corporations as constitute interstate business within the state. The re- but a reorganizaion or continuance of the lator was incorporated with the purpose of convicted corporation. And (3) that, regardacquiring the property and business of the less of any other view, the statute should be Waters-Pierce Oil Company, then conducting held to apply to only such transfers of the its business in Missouri, in other states and properties and business of the defaulting corin the republic of Mexico; and shortly after poration as were made prior to its conviction. its incorporation it purchased and took over In connection with these general proposifrom the Waters-Pierce Oil Company all of tions it is also urged that, to hold the relator its property and business and assumed all barred from the state because of its purof its obligations, which business it now owns chase, out of the state, of the properties of and operates. the Waters-Pierce Oil Company not situated within it, is, in effect, to attaint such property, and is likewise to give the statute an extraterritorial operation.

The transaction by a foreign corporation within the state of other than interstate business is only a privilege, which the state may extend or withhold; it is not a right which the corporation possesses. The state is free, therefore, to prescribe the terms or conditions upon which it grants the authority. They may be rigorous, but the power of the Legislature to give them that character is undoubted; and the foreign corporation, in seeking only a license which the state is under no obligation to allow, is in no position to complain of their severity. Its only alternative is to come within the conditions which the state has seen fit to impose. Taber v. Interstate B. & L. Ass'n, 91 Tex. 92, 40 S. W. 954.

We do not find it necessary to determine whether the relator is but a corporate continuation of the Waters-Pierce Oil Company, and therefore subject to the injunction decreed against that company in the suit above referred to, one of the positions here advanced by the respondent as a ground for his refusal to issue the permit. The question is in our opinion plainly ruled by the statute (article 7805, R. S. 1911), which is as follows:

"When any foreign corporation has been convicted of a violation of any of the provisions of this chapter, and its right to do business in this state has been forfeited, as provided in article 7803, no other corporation to which the defaulting corporation may have transferred its properties and business, which has assumed the payment of its obligations, shall be permitted to incorporate or do business in Texas."

|

The Waters-Pierce Oil Company having been convicted of violation of the anti-trust law of the state embodied in the chapter of which article 7805 is a part, and its right to do business in the state having been forfeited, the relator, a foreign corporation to which it has transferred all of its properties and business, and which assumed the payment of all of its obligations then existing, comes directly within the statute, and is prohibited from doing business in Texas, unless, by construction, the statute is given an effect contrary to the meaning of its literal terms.

The manifest aim of this statute was to prevent the fictitious succession in this state of a foreign corporation which had been adjudged an offender against the anti-trust law, and whose permit to transact its business had been forfeited. The Legislature had the right to select and provide any test which it deemed a proper one for determining that question, or to exclude from the state any corporation sustaining a given relationship to the convicted corporation. It might have enacted the statute in such terms as would deny the privilege of coming within its borSeveral contentions are made by the relat- ders, for the transaction of their business, to or in respect to the proper construction of only such corporations purchasing the propthis statute, all of which we have examined, erty and business of a defaulting corporation but none of which we regard as sound. as were but its continuation, or to only such Among others, it urges, principally: (1) That as had made the purchase prior to its conthe whole policy and purpose of the anti- viction. But no such qualification can be imtrust legislation of the state is only to pre- posed by construction upon this statute in vent illegal combination in restraint of trade, the face of its plain provisions. The statute and it was not the intention of this statute to very clearly evinces a purpose on the part of exclude from the state an independent for- the Legislature to reject any inquiry by the eign corporation not a member of any such officials of the state as to whether the corcombination, which will afford competition poration seeking the permit has any identity in its line, and is able to truthfully make the with the convicted corporation, and to proanti-trust affidavit required of foreign cor- vide, as the test of its right, simply whether porations under article 1315, and has done so, it has acquired the properties and business, merely because it has acquired the properties or has assumed the obligations of a foreign and business, or has assumed the obligations corporation previously convicted under the of another foreign corporation once convict- anti-trust law, and whose permit has been ed under such laws and its permit forfeited, forfeited. The statute permits no inquiry but which, at the time of the sale of its prop- beyond this. And no exemption from its erty and business, was free from any illegal operation can be predicated upon a condition alliance. (2) That under the proposition just which discloses the acquisition of the prop

poration, or the assumption of its obligations, | foreign corporation acquiring both cannot be by the corporation seeking the permit, re- permitted to incorporate or transact busigardless of whatever else may be shown in ness in Texas. respect to its relationship. Language could not be plainer, and there is no room for a different construction. With the policy or wisdom of the statute this court has nothing to do. It is our duty to give effect to its provisions.

[4] The statute exerts no extraterritorial power. It does not prohibit anything done without the state, but only that which is attempted within the state. That its prohibition may operate because of acts done without the state does not impart to it an extraterritorial effect, or render it any the less a valid exercise of legislative authority over a subject within the jurisdiction of the state. As the state has the right to entirely withhold its permission for a foreign corporation to transact business within its limits it is within its power to provide that such permission shall be denied for such cause as it may prescribe, whether based upon acts within the state or out of it. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 29 Sup. Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645. The motion is refused.

It is furthermore evident that the Legislature intended to make immaterial when the acquisition of the defaulting corporation's properties and business took place, whether before or after its conviction, since the statute is silent upon that question. It merely provides that no foreign corporation shall be permitted to incorporate or transact business in Texas, to which the defaulting corporation "may have transferred its properties and business, or which has assumed the payment of its obligations," which can only mean a corporation that has made such acquisition or undertaken such assumption at any time prior to its effort to so incorporate or transact business within the state. Necessarily the only concern of the statute in this respect is whether the corporation is under the disability it imposes, at the time it seeks to incorporate in Texas or transact its business in the state, no matter when it was incurred. That is the point of time, and the only point of time, to which it has reference in relation to the transfer of the defaulting corporation's properties and business and the assumption of its obligations. The corporation comes under the disqualification of the statute, whenever such transfer is made or such obligations are assumed.

1.

That similar language is employed in article 7802, relating to the acquisition of the properties and business of a defaulting domestic corporation, which, it is said, cannot transfer its property after its charter is forfeited as the result of such conviction, does not affect the question. That a corporation taking over the properties and business of a convicted domestic corporation could only come, for that reason, under the disability

of that article, by a purchase made before the latter's conviction, is of no force in determining the effect of this statute. It perfectly plain that it is the transfer of the defaulting corporation's properties and business which creates the disqualification under both articles; the time of the transfer is immaterial.

LISLE-DUNNING CONST. CO. v. McCALL.
(No. 5278.)

San An-
Civil Appeals of Texas.
May 13, 1914. Rehearing De-
nied June 17, 1914.)
APPEAL AND ERROR (§ 997*)-QUESTIONS

(Court of
tonio.

REVIEWABLE-SUFFICIENCY OF EVIDENCE.

The court on appeal, on reviewing the refusal of the trial court to direct a verdict for termine whether the evidence of plaintiff susdefendant, will consider the testimony and detains the verdict for him, and, where it does so, it will not consider the conflicting evidence of defendant.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4023, 4024; Dec. Dig. § 997.*]

2. APPEAL AND ERROR (§ 1003*)-VERDICTCONCLUSIVENESS.

A verdict sustained by any evidence will not be disturbed on appeal, though it may be against the preponderance of the evidence.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*]

3. MASTER AND SERVANT (§ 279*)-INJURY TO SERVANT-NEGLIGENCE EVIDENCE.

struck by a rod of steel thrown from a car, In an action for injuries to an employé evidence held to show negligence of the superintendent in permitting laborers to throw steel rods in the place where he had ordered the employé to go, and where the superintendent knew, or should have known, the employé had gone.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 973-975, 978-980; Dec. Dig. 279.*]

4. TRIAL (§ 233*) — INSTRUCTIONS - PRELIMINARY STATEMENT OF ISSUES.

[3] There is no question of the attainder of property involved. The statute makes no such attempt. Nor does it seek to prevent any sale by the convicted corporation of its property. A foreign corporation which buys merely the convicted corporation's property is not excluded by the statute. It must acquire "its business," as well, to be subject to its operation. The defaulting corporation, so far as affected by this statute, is left free to sell both. It is merely provided that a ment of error or proposition to the charge be

Where no objection was made in assign

preliminary statement of the issues raised by
While it may not be necessary to make a
the pleadings, it is not error for the court in
its charge to state the issues by copying a part
of the petition.

Dig. 88 527-530; Dec. Dig. § 233.*]
[Ed. Note. For other cases, see Trial, Cent.

5. APPEAL AND ERROR (§ 754*)—QUESTIONS
REVIEWABLE-INSTRUCTIONS OBJECTIONS.

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