27 Barb. 445 | N.Y. Sup. Ct. | 1857
Some of the questions discussed • upon the present argument have been examined in a former action, brought against these defendants by the town of Fishkill. In that case I came to the conclusion that so much of the act passed April 15, 1854, entitled “An act to release the Fishkill and Beekman Plank Boad Company from the construction of part of their road, and for other purposes,” as discharges the defendants from the condition imposed by their charter, of carrying on their road from the point it had reached to their appointed terminus, was valid, while all the residue was unconstitutional and void. It was argued, in this case, as indeed it was suggested in the other, that the whole act is unconstitutional, as impairing the obligation of contracts. While the opinion expressed in the former suit, to which I have alluded, may not be regarded as an authority upon these points, since the only question necessarily determined in that action was that the town could not maintain such a suit, yet I have seen no reason to change the views then formed, either one way or the other. The contract which this act is supposed to impair, is that made by the com-r pany with the supervisor and commissioner of highways of the town of Fishkill, by which these officers granted the use of certain highways to the defendants, and they, as compen-* sation for these privileges, agreed to keep such roads in repair without expense to the town. If the special statute by which this particular company was authorized to abandon, and was released from the duty of repairing, any or all of this road, be
It is also contended that this contract was originally void, as exceeding the power of the supervisor and commissioners, or if not void in toto, according to the view taken by the defendants’ counsel, that the condition upon which the lieensé to take the highway is given is void, and the grant absolute. It is not necessary now to determine whether eitjrer, and if so, which of these views is correct. With my present impresr sions, I am not inclined to accede to either. Upon an examination of this question on a former occasion, to which I have already adverted, I came to the conclusion that this agreement was valid, and that compensation for the privilege of using a highway could be made in this way. The question was not very fully discussed on that argument, and the cage of Palmer v. Fort Plain and Cooperstown Plank Road Co., (1 Kern. 376,) was not adverted to. That case is now cited as establishing the invalidity of any agreement for the use of a highway, by a plank road, which fixes the compensation to be paid in any .other way than in money. But the qqse does pot decide this,
I have therefore come to the conclusion that the defendants acquired the right to take and use the highway upon which their road was built, in a legal and valid manner.
So far as regards that portion' of their contemplated road which they never built or commenced, the statute passed for . their special relief, April 15, 1854, (Laws of 1854, ch. 271,) discharges them from their obligation to construct it, or to proceed with the work beyond the point then reáched, and from the liability to a forfeiture of their corporate existence which would otherwise be consequent upon the neglect or failure to complete the road. I think, therefore, that the fail
The vital questions in this case lie beyond these preliminary inquiries;' and the case, like every other which depends upon the confused legislation which fills our statute books in relation to plank roads, presents several questions of serious difficulty. The first position taken by the plaintiffs is that the corporate existence of the defendants is forfeited by their failure to observe the conditions imposed upon them by law in the construction of their road. The performance of the duties enjoined by the fundamental law, by or under which corporations are created, is in all cases a condition of the grant of corporate privileges and franchises. (1 Ld. Ray. 498. 12 Mod. 291. Case of the City of London, 8 State Trials, 1271.) A failure to perform any of these duties is therefore a breach of the condition upon which the corporation holds its franchise.
These cases, and qthers cited in The People v. Kingston and Middletown Turnpike R. Co., (23 Wend. 193,) and in Ang. & Ames on Corp. 745, 3d ed., show that this was the rule at common law. The statute (2 R. S. 483, § 39,) provides that an information may be filed to procure the forfeiture of the charter and privileges of any corporate body, whenever it shall offend against any of the provisions of the act or acts creating such corporation, as well as for a violation of any provisions of law in such a way as to constitute a positive misuser. In the case of The People v. The Kingston and Middletown Turnpike Road Co., and in the two succeeding cases of The People v. Bristol and Rensselaerville Turnpike R. Co., and the same v. Hillsdale and Chatham Turnpike Road Co., (23 Wend. 193, 222, 254,) it was held that this provision wais in affirmance of the rule of the common law which held core porations to the substantial performance of all the express conditions required by the acts from which they derived their privileges, just as an individual is .required to fulfill
The judgment of the court, in the same cases, also disposes of the argument that the certificate of the inspectors estops the state from averring any previous forfeiture; or that the act of the legislature, passed in 1854, (Laws of 1854, ch. 271, p. 593,) authorizing the defendants to terminate their road at the point then reached, waived any former acts or omissions otherwise fatal to their corporate existence. As to the first proposition, the certificate of the inspectors, under § 34 of the general plank road act, is at least of no higher character, and should he no more conclusive upon the people than the report of commissioners and subsequent express license of the governor to take toll, which were authorized and required by the former turnpike law. (See Laws of 1807, ch. 38; 1 R. L. 228, 232.) In both statutes the point to be ascertained and certified by the officers or agents appointed for that purpose, is whether the road is completed, according to the true intent and meaning of the law. But in neither case is this certificate—not even when strengthened by the governor’s license under the former law—conclusive upon the state in a direct proceeding to test the manner in which the road has been constructed. In reference to the effect of the law of 1854, it is only necessary to observe, in the language of Chief Justice Nelson, when a similar point was presented in the case of the Kingston and Middletown Turnp. R. Co. (23 Wend. 212,) that the legislature have not, by any portion of the act of 1854, which is valid and constitutional, confirmed the road as constructed, in express terms; and no such implied intent can be perceived in any of its provisions. If the whole act were valid, I am not satisfied that it would aid the defendants on this point. An express confirmation is not to be found in any part of the act, and the last section, which is intended to legalize all the proceedings of the company which were sup
The question then is, whether the defendants were required, by the provisions of the law under which they were organized, to lay out and construct a road of the width of four rods, as is claimed by the counsel for the people. Section 31 of the general plank road act enacts that “every plank road made by virtue of this act shall be laid at least four rods wide.” The road of the defendants was made, for the entire length of the part now remaining, and exclusive of the portion abandoned at the -western end, upon an ancient highway which, was in no part of it of the required width. The right to take and use this portion of the highway havitig been procured by agreement with the commissioners and supervisors of the town, pursuant to section 26 of the general plank road law, the road was constructed upon the highway as it was; the fences were not removed nor were any steps taken to widen it. It is contended by the defendants that in thus authorizing these corporations to acquire and take the right to the use of public highways, the legislature intended to allow them to take ■ such highways just as they are, and of whatever width they may be, and to make the case of roads thus built on ancient highways an exception to the mandate of the law that such roads must be four rods wide. But this is not the language of the act. The provision requiring plank roads to be laid out of this width is" broad, and comprehends every road made under the act; whether it be laid out by commissioners, or by agreement between the corporation and parties interested in the lands. It applies equally to roads which are constructed upon new routes through the lands of individual owners and to those Which are built wholly or in part upon former highways. There is no exception of the latter from the general requirement; nor is there any clause in that part of the law allowing highways to be thus obtained and occupied, which recognizes a road constructed on such a highway as a compliance with the statute, whatever may be its
The next question arises upon the finding of the jury that the defendants have suffered portions of their road to become impassable. This was not mere negligence, but a deliberate and intentional proceeding of the defendants under a claim of right. It. is justified by the abandonment which they claim to have made of these portions of their road, formally relinquishing its charge and returning it to the public, as they suppose they had a right to do. The authority for this is claimed to be found, first, in the special statute of April, 1854, which I have adverted to, and second, in the general law for the relief of plank road companies. (Laws of 1854, p. 167, ch. 87.) Proceedings were had and papers filed under both statutes, first, in order to comply with the special act, in August, 1854, and afterwards in conformity with the requisitions of the general law, in November, 1854. As to the first attempt to abandon portions of this road, I am satisfied, for reasons which I stated in the case of The Town of Fishkill v. The Fishkill and Beekman Plank Road Company, that all that portion of the act in question which authorizes the abandonment of" portions of the defendants’ road then built, and of course those parts of the act under which these proceedings were had, is in conflict with section 16 of article 111 of the constitution of this state. These proceedings under this act cannot therefore be a justification or protection to the company. The other proceedings to abandon portions of the road, taken under the general law on that subject, are objected to, because they were not signed or consented to by stockholders holding or representing two-thirds of the nominal capital of the company, which was $30,000. It is proved, however, that the capital had then been reduced to $ , by forfeitures of stock by the company for the non-payment of calls. Two-thirds of this amount does appear on these papers, and that is two-thirds of the capital stock at that time, and answers the
But another question arises from the fact that the defendants permitted portions of their road to become impassable, and dangerous, long before these latter proceedings, and therefore before they took any legal or sufficient action to relieve themselves from the obligation of repairing it.. The subsequent action, surrendering these portions of their road, will not cure the difficulty. Subsequent repairs would not have that effect. It is not-necessary that the neglect, misuser, want of repairs or the like, for which the action is brought, should exist at the time of its commencement. On the contrary it is well settled, that when a misuser of their franchises has once been committed by a corporation, or a breach of the duties enjoined upon them as conditions of their creation and continuance sufficient-to forfeit the charter, mere subsequent good behavior in such respects will not legally atone for such a cause of forfeiture. Nothing but the waiver of the sovereign power will relieve a corporation from the consequences of such acts. (See 23 Wend. 254, 258.) The jury have found that the part of the defendants’ road at its western extremity which is complained of became dangerous and impassable in 1855, and the eastern extremity became impassable as early as 1854. I shall say nothing about the eastern extremity, but as to the western end of the road the facts are found by the jury very strongly and justly,.under the evidence. They find that the road became both impassable and dangerous, and that the defendants refused to repair or continue the care of it after they had removed the plank in the year 1855. The defendants show no valid-release from their obligation to keep these as well as the other portions of the road in order, until November,' 1856,
The question which has occasioned me the most difficulty in the case still remains. That is the question whether these causes of forfeiture are waived by the 23rovisions of section six of chapter 87 of the Laws of 1854, page 167. This is a general act for the relief of plank road companies, and authorizes among other things the relinquishment of the whole or 2Dortions of their roads. It is the act under xvhich the defendants have finally proceeded to effectually abandon and discharge themselves from the care of parts of this road. The sixth section first provides that every company formed under the general plank road law shall be deemed to be a valid corporation, notwithstanding it may not have complied with the requirements of that act, and of the acts amendatory thereof, in the formation and organization of such company, and preparatory to the construction of its road. This portion of the statute obviously relates to a different class of acts or omissions from that now under consideration. Its object is to save this class of corporations from the consequences of any errors or omissions in the various formal acts required for the organization of such companies. It is confined by its terms to these, and cannot extend to subsequent'breaches of conditions, neglect of duties, or misuser of powers. Then follows this clause: “ and no act or omission on the part of any such company, or of its stockholders or officers, shall work a forfeiture of its corporate power or franchises, unless the same was willful and malicious” The word “ willful” has an intelligible application in this connection, but it is not so easy to see what is the meaning of the term “ malicious.” It can hardly be taken in its ordinary
The difficulty and confusion arises from using a word in a connection, and with reference to a subject, to which it has no legitimate application. We are driven to conjecture, or at any rate to analogy, to ascertain the meaning of such a word as u malicious,” in such a connection.
Upon the whole I think the class of acts or omissions which the legislature intended to pardon are mere acts of negligence and carelessness not done in assertion of any right or privilege, or in denial of any obligation. The neglect to file a map or
Emott, Justice.]
If therefore these acts were wrong, and if they were sufficient to forfeit the corporate privilege enjoyed by the defendants, I am satisfied they were such acts as are styled in the statute of 1854 “ willful and malicious.” I think any other definition of these terms in the statute would open the door to manifold abuses, and justify much which the legislature could not have contemplated.
And holding as I have that these, unforgiven by the sovereign power, are causes of forfeiture, it only remains for me to adjudge the corporate existence of the defendants forfeited, and to order judgment for the people with costs.