A dedication of streets and alleys is operative even in the absence of formal acceptance of the grant. The attempted reservation of rights in the dedicated streets and alleys is void, because in conflict with the broader purpose and with the terms of the grant, and because contrary to public policy as reflected by R.S., art. 1231. To such streets that statute applies, and over them it gives right of way, to "corporations created for the purpose of constructing and maintaining magnetic telegraph lines."
The quoted descriptive phrase includes, generically, magnetic telephone lines. San Antonio A.P. Ry. Co., 93 Tex. 313, 77 Am. St., 884, 49 L.R.A., 459, 55 S.W. 171. Consequently, if the purpose clause of this telephone company authorizes it toconstruct and maintain long distance telephone lines, it is entitled to a right of way over the streets of said townsite; City of Brownwood v. Telephone Co., 106 Tex. 114,157 S.W. 1165; but not so if the legal effect of its charter is to limit its corporate powers to the mere operation of telephone lines, withholding and denying authority to construct and maintain such lines.
Furthermore, corporations of the class so defined by article 1231 are within the operation of our condemnation statutes, and thereby are privileged to exercise the sovereign power of eminent domain. R.S., art 1232. If this telephone company is within that favored class, it has a legal right to condemn a right of way across the unplatted portion of the townsite company's land; but, unless it falls within the stated classification, it is not within the purview of our condemnation statutes, and, therefore, can not legally exercise that power of eminent domain. But does a charter power to "operate" telephone lines include, byimplication, statutory power to construct and maintain such lines, and, by reference, power to condemn privately owned lands? More concretely, under our statutes and the purpose clause of this telephone company's charter, has the State clothed that corporation with power and authority to construct and maintain telephone lines, and to condemn land therefor, as well as to "operate" them? That is the only feature of this case upon which I dissent. The majority opinion in both its branches — as to right of way over said streets and also as to right of way over said unplatted land — rests, ultimately, upon an affirmative answer to my foregoing questions; but I think those questions should be answered negatively. How can a part include the whole of anything?
If the issue thus presented involved merely a construction of the purpose clause of said charter in the light of our general incorporation *Page 458 statute alone, the question would be serious enough; but it is doubly important in that in deciding it we must determine also whether the benefits of condemnation statutes shall be thereby extended, by construction and implication, to include a corporation operating, as does defendant in error, under a charter whose purpose clause fails to enumerate, specifically, any expressly designated statutory purpose in furtherance of which our condemnation statutes, by their own terms, or by express reference, expressly run.
Said charter rests, for authority, solely upon R.S., art. 1121, sub. 8, wherein our general incorporation law declares: "The purposes for which private corporations may be formed are: . . . the construction and maintenance of a telegraph and telephone line." The purpose clause of said charter declares: "This association is formed for the purpose of operating a through system of telephone lines," etc. It does not use the word "construct," or the word "maintain," or any derivative of either of them. Nowhere does our law expressly authorize the formation of a corporation for the purpose of "operating" a telegraph or telephone line. Unquestionably the quoted phraseology of said charter is not expressly or specifically authorized by law, and does not expressly clothe that corporation with power or authority to construct and maintain a telephone line, and, consequently, does not bring defendant in error clearly under the operation of either article 1231 relating to public streets or article 1232 relating to condemnation proceedings. Conversely, if defendant in error is entitled to the benefit of either and both of those statutes, as my associates declare it is, it enjoys those privileges solely upon the theory that, by construction andimplication, a charter which purports to authorize a corporation to "operate" a telephone line confers upon that corporation full statutory power and authority to construct, originally, and tomaintain, a telegraph line, embracing, as a consequence, and by virtue of articles 1231-2, the high powers of eminent domain therein conferred upon "corporations created for the purpose ofconstructing and maintaining magnetic telegraph lines."
If the majority opinion is sound, in so holding, then, for like reasons, and for the added reason that R.S., art. 6405, which authorizes the incorporation of railroad companies, expressly uses the word "operating," a charter simply declaring the purpose of a corporation to be to "operate" a railroad from Brownsville to Texarkana would confer upon such corporation, under R.S., art. 6405, full statutory authority for "constructing, owning, maintaining and operating such railroad" including, of course, the right, given by arts. 6506-6522, to railroad companies to condemn land for right of way, etc. The argument is that "operate," as used in said charter, includes "construct and maintain" — as those words, or their quoted derivatives, are used in our incorporation statutes. Etymologically the words "operate" and "construct" have essentially different meanings, and "operate" signifies working something already constructed.Construction ends before operation *Page 459 begins; the latter begins where the former ends. The terms are complementary — not synonymous. As stated in the opinion of Judge S.P. Sadler, of Section B of our Commission of Appeals, to which this cause was referred by this court, the word operate "pertains to output and does not include machinery necessary to the construction of a plant. Authority to issue bonds to purchase and construct does not cover the issuance of bonds to maintain and operate. Words and Phrases, vol. 6-4989, 2d series, vol. 3, 743." As defined by lexicographers, and in the language of the plain people, the words mentioned have radically different primary significations. As used in art. 6405 they are, very plainly, not synonymous; and, in my opinion, they are not interchangeable within contemplation of articles 1121, 1231 and 1232, supra. I am not familiar with any canon of construction, or decision, which supports that view that "operate" and construct and maintain, and their derivatives, are synonymous, and, therefore, interchangeable, in the purpose clause of the charter of the telephone company or of any other corporation, and none is cited in the majority opinion in this cause. Upon that point I have not time now to search the books. In said opinion we are referred to the Northside Railway Case. The only cognate principle enunciated in that decision is to the effect that a duly chartered corporation may have and exercise fairly implied powers in addition to the powers expressly enumerated in and conferred by its charter and the statutes; and that, of course, is sound. But that decision is not authority for the conclusion announced by my associates to the effect that power to "operate" a telephone line carries power to construct and maintain such line. The doctrine of that cited case relative to implied powers has no direct application to this case. Here the telescope is reversed, in a sense, the present issue being, simply, whether a corporation whose charter sets out, in its purpose clause, only one purpose which is not even specifically mentioned in our general incorporation statute, and which, if it is permissible at all, is so solely because it is an implied power of corporations when duly chartered under said subdivision 8 of art. 1121, really has, and legally may exercise, all the several powers enjoyed by a corporation, the purpose clause of whose charter follows the precise phraseology of the statute.
I can see no good reason for holding that a charter purpose clause which sets out only one of several expressly enumerated statutory purposes should be held to confer upon the corporation all of the powers wrapped up in all such statutory purposes; and the same reasoning applies, with added force, when, as in this instance, the purpose clause of the charter mentions not even one expressly stated statutory purpose, but, in lieu of the statutory terms, employs one which, at most, carries only an implied power which a properly chartered corporation of such general character would have merely as an incident of expressly enumerated statutory powers specifically mentioned in its charter.
If a corporation desires to have and exercise all the powers enumerated in any particular subdivision of art. 1121, it may acquire them by *Page 460 simply inserting such powers in the purpose clause of its articles of incorporation in haec verba, or in substance; and if, through design or oversight, it fails to do so, it should be held by the courts to its own election, and, accordingly, should be denied the exercise of powers which, though within its grasp, it never claimed when asking of the State, its creator, power to be and power to do. And especially, it seems to me, is that view of the subject applicable in cases like this, wherein is involved the question as to the power of the courts to extend to such negligent or very modest corporation, purely by construction andimplication, the rights of eminent domain.
In line with my views of this subject this court, through Gaines, J., afterward Chief Justice, said: "The matter of condemning property for reservoirs is not named in the title to the act; nor is it, as we think, expressed by the mention of `water mains.' The former term is not comprehended within the latter. They are in no respect synonymous; and the things they represent, though intimately connected with their actual use, are distinctly different. Their relation to each other, and their connection in ordinary use, — the necessity of one to the other which may exist under certain circumstances, — may evince the intention of the Legislature to make the law applicable to both. But it is not with a question of intention we have to deal. The inquiry's not what the Legislature intended to embrace in the title, but what, by the terms employed, it did, in fact, embrace. . . . The statute under consideration is void in so far as it attempts to authorize the condemnation of property for reservoirs and standpipes." Adams Wickes v. San Angelo Waterworks Co.,86 Tex. 485, 25 S.W. 605.
There the effect of a statute was restricted to the area defined in its caption; here, according to my own individual view of the matter, the effect of a charter should be limited to the fair and ordinary meaning of the words actually employed in its purpose clause. The public policy of this State, as reflected by our State Constitution, and by our statute laws, and by our decisions, has been, traditionally, to restrict corporations to the exercise of only such powers as they clearly possess. The action of this court, in this case, seems to me to go to an extreme opposite. The pendulum seems to have swung far back since the decision of this court in Smith v. Wortham, Secretary of State, 106 Tex. 106, 157 S.W. 740, wherein I thought this court, as then constituted, construed art. 1121 too strictly, even though that case presented no question as to the applicability of our condemnation statutes.
The report of the Commission of Appeals on this case is to the effect that the alleged dedication of streets in said townsite is inoperative, for lack of acceptance; that the telephone company was invading the property rights of the townsite company; and that, under the peculiar phraseology of its charter, the telephone company is destitute of the right of eminent domain; upon which conclusions followed the recommendation that the case be reversed and remanded to the trial court.
Its conclusion as to the restricted signification and legal effect which *Page 461 should be given to "operate" in said charter is in line with the views herein expressed; and in stating them I have drawn freely upon said Commission's opinion.
While I do not approve the Commission's view as to the effect of the attempted dedication of streets, my general conclusion is that defendant in error is not within the operation of articles 1231-2, and that the writ of injunction should have been granted; wherefore said recommendation of the Commission of Appeals should be adopted by this court.