| New York Court of Chancery | Jan 20, 1904
The petitioner was organized under the act of 1893, entitled '“An act to authorize the formation of traction companies,” &e. Gen. Stat. p. 8285. Its certificate of incorporation was recorded in the clerk’s office of Mercer county and filed in the secretary of state’s office on July 31st, 1899. A description of the route was filed in the secretary of state’s office on May 21st, 1903. The road is therein described as a single-track railway, upon and along a certain public highway in the township of Hamilton, Mercer county, known as the Crosswicks and Trenton Turnpike road, and also known as the White Horse road. It begins where this highway intersects the centre line of another highway leading from Hamilton Square to North Crosswicks, .and runs along the White Horse road certain courses and dis
On May 21st, 1903, a petition was presented to the township committee of the township of Hamilton, asking permission to construct the said road, which permission was granted by an ordinance passed on June 11th, 1903. This ordinance was accepted within thirty days from its passage by an instrument under the seal of the corporation, signed by its president and secretary. Permission was also granted by the board of chosen freeholders of Mercer county.
The route of petitioner’s road crosses the line of the steam railroad of the respondents, where the same crosses the White Horse road, at Yardville. The prayer of the petition is that the mode in which this crossing shall be made shall be defined by this court.
The first objection interposed by the respondents is that the filing of the present route is a nullity, because the same company (the Mercer County Traction Company, the petitioner) had already, on December 7th, 1899, filed a description and map of a route along the same highway, extending from Yardville southerly to the Mercer county line. This route coincides with the present route from Yardville south to North Crosswicks. The insistence is that the location of the route defined in the description and map filed (of December 7th, 1899) excludes the company from filing a new route over a part of the same courses.
It appears that upon the assumption that the route filed on December 7th, 1899, and the ordinance granting.permission to construct its road upon that route, was valid, another route and map was filed on August 23d, 1901, as an extension of the road, a' description of which had been filed on December 7th, 1899, and a permissive ordinance was passed by the township of Hamilton to construct the extension described in the description and map of August 23d, 1901. The extension crosses the respondents’ railroad at Yardville, and upon a petition similar to the
The counsel for petitioner, however, directs attention to the fact that the map filed on December 7th, 1899, did not comply with the requirements of the sixth section of the statute of 1893, which provides that the corporation shall, before the beginning and construction of an extension or new line, file in the office of the secretary of state a description of route of such extension or new line, together with a map exhibiting the same with the courses and distances thereon. Dpon an inspection of the map, it appears that there are no written statements of distances, nor of courses, along the route designated thereon. The termini are exhibited, with a route running from one to the other, following a variety of courses. Dpon the map there is a scale, by applying which to each of the several courses the distance could be ascertained with sufficient certainty to perhaps comply with the requisition of the statute. There seems, however, to be nothing upon the map from which the courses can be deter
■ It is to be observed, also, that the exclusive right of the petitioners to construct a road under the authority given them by the filing of the papers of December 7th, 1899, had expired, because no attempt at construction, within six months, had been made by them. Whether, after the exclusive right to use the route had thus expired, this company was in the same position as any other corporation, with the right to file a new description and map, it is not necessary to decide.
The second objection by the respondents is directed to the sufficiency of the consents of the abutting owners presented to the township committee, as a condition precedent to the passing of the ordinance, giving consent to the construction of the road.
It is not denied that the owners of a majority of the lineal feet of land fronting on that part of the- highway along which the present route runs were duly signed and filed with the clerk of the township' before the passage of the ordinance. The point made is that the papers so filed with the clerk of the township must be regarded as consents to the construction of a road to be built by the petitioner, in accordance with the description and survey filed on December 7th, 1899.
The acknowledgments' of nearly all the persons signing these consents were taken on April 29th, 1903, before the present description of route and map wére' filed in the secretary of state’s office, the date of which filing was, as already' observed, on Hay 21st, 1903.
While the case decides that when the governing body has once acted upon the consents the efficiency of the consents is spent, nevertheless, until the corporation so acts, I do not see why the authorization might not be as broad as any other power of attorney. The consents in the present instance were of the most general character. The only limitation contained in the consents was that the road built by the petitioning company should be constructed along the highway in front of consenter’s land. The consents were in the following language:'
“We. the owners of property fronting on the public highway, in the township of Hamilton, county of Mercer and State of New Jersey, leading from the village of AVhite Horse in the said township, southerly by way of North Crosswicks to the village of Allentown in the county of Monmouth in said state, and formerly known as the White Horse road, do hereby consent to the construction, maintenance and operation of a street railway by the Mercer County Traction- Company, through and upon the said public highway, in the said township, and hereby consent that the township committee of the township of Hamilton, grant permission to the said Mercer County Traction Company to construct, maintain and operate the said street railway.”
The fact that the consents were given before the last description and route was actually filed, I think of no importance, except, perhaps, upon the point that the consents must -be regarded as referable to a description and route already on file. Of the efficacy of consents given before the actual filing of a description and map, I have no doubt. G. & W. Railway Co. v. New York Central and Hudson River Railroad Co., 163 N.Y. 228" court="NY" date_filed="1900-06-05" href="https://app.midpage.ai/document/geneva--waterloo-railway-co-v-new-york-central--hudson-river-railroad-5479648?utm_source=webapp" opinion_id="5479648">163 N. Y. 228, 234.
If the map, filed on December 7th, 1899, was defective, there arises no legal presumption that the consents were given in reference to it. Nor, having regard to the situation and the general language of the consents, in my judgment, no inference
It is next objected that there was no legal acceptance of the ordinance, because there was m> meeting of the board of directors at which the president and secretary were specifically authorized to sign and affix the seal of the corporation to the instrument filed as an acceptance. The provision which presently controls the matter of acceptance is to be found in the act of 1896. P. L. of 1896 ¶. 829 § 1. It provides:
“'That the permission granted by the municipal body shall be binding and effective, if an acceptance thereof, in writing, by the corporation making such petition shall be filed within thirty days after receiving notice thereof, with the clerk or other equivalent officer of the governing body granting such permission.”'
The validity of many corporate acts depends upon a resolution of the board of directors, regularly assembled as a board, of other acts by the implied power given to the agent who executes it, in the course of corporate business, or by ratification resulting from acquiescence in such acts by the individual officers of a corporation. Assuming that the acceptance of this ordinance was such a corporate act as must be executed by authority of the board of directors, assembled at a legal meeting, I am of the opinion that the president and secretary were invested with the power to execute the acceptance1 filed. By a resolution, passed at the meeting of the directors held on May 20th, 1903, it was resolved that the company should construct this line of railway, and it was further resolved that the president and secretary were authorized to execute all papers on behalf of the company to procure ordinances for that purpose. Under that authority
Again, the acceptance being under the approved seal of .the corporation and signed by the president and secretary, is presumed to be the duty-authorized act of the corporation. Legget v. New Jersey Manufacturing and Banking Co., Sax. 541; Parker v. Washoe Manufacturing Co., 20 Vr. 465.
There is nothing to refute this presumption, save that it does not appear in the minutes of the corporate proceedings that any meeting was held at which the president was empowered to sign such an instrument. The minutes are certainty not conclusive as to the non-existence of a fact not stated therein. In this case neither the secretary nor any director was called to show that no such meeting was field at which authority was given to the president and secretary to execute this paper. In my judgment the presumption of authority, arising from the execution of the paper under the seal of the corporation and signature of the president and secretary, is not rebutted by the absence of written minutes of a specific authorization.
The three points discussed are, as appears to me, the only substantial objections raised against the right of the petitioner. In my judgment there should be a decree fixing the method of crossing.