9 Mich. 285 | Mich. | 1861
Lead Opinion
As the demurrer to the replication opens the whole record, so far as defects of substance may be found, and the plea is claimed to be defective for want of certainty, ■the sufficiency of the plea is the first question to be settled.
The information is general, calling upon defendants to show by what warrant they claim to have and use certain liberties, privileges and franchises. It does not go upon the ground of failure to comply with any act of incorporation, or other law granting such rights and franchises upon certain conditions, nor does it claim a forfeiture of rights admitted to have existed, upon this, or any such ground. The plea sets up the act of incorporation, their organization under it (and other acts), by their
It is not denied that the plea is a full answer to the information, upon every point except that of the right to take tolls. But by the law as it then stood — Paws of' 1848, p. 65, § 17— five consecutive miles of the road were required to be completed before this right accrued; and the question is, whether the above cited allegation of the plea is sufficiently certain upon this point. Had the plea been specially demurred to for this reason, it might perhaps have been held bad in form, as it is not a direct and positive allegation of the completion of the five miles of road. But it is a formal defect only, which could not have been reached on general demurrer, and the People having replied without objecting to the defect, on demur-, rer to the replication we can not notice this formal defect in the plea: — Steph. on Pl. 177; 1 Chit. Pl. 707, 708.
The only questions in the case must therefore turn upon the sufficiency of the replications, which have been specially demurred to.
In determining these questions, it may be well to take a general view of the laws under which the franchises of the company are claimed, and then to inquire whether the replications exhibit a ground of forfeiture, and to what extent.
First, as relates to the construction of tha road. As a pre-requisite to the right of taking toll, the company, as already noticed, were bound by the law of 1848 to have
This disposes of the first and fifth replications, which relate entirely to the question of construction of the road, and which, though literally true,, would not be inconsistent with the fact of the due construction of five
Repairs. As by the charter (for the act of 1848 is part of the charter) if five consecutive miles have been duly completed, the franchise can not be 'forfeited, as to the part so completed, by the failure to construct the balance, the question arises, whether if these five miles are kept in repair, and the remainder of the road or part of such remainder be afterwards constructed, would a failure to keep such remainder in. repair forfeit or affect the franchise as to the first five miles, while that is kept in repair ? I think it would not. Had the company been under the obligation to construct the whole road authorized by the charter (as is frequently the case with turnpike charters), a neglect of this obligation, by which the public would lose the benefit in consideration of which the franchise was granted, might, unless otherwise provided, be ground for forfeiting the franchise for the whole road. Doubtless a failure to keep the remainder of the road in repair when constructed, would be cause of forfeiture pro tanto: but whether for the whole of such remainder, or only so much of it as was not, for five consecutive miles, kept in repair, it is unnecessary here to decide; since, from Avhat has already been said, I think it sufficiently clear that, to authorize a forfeiture of the whole road on the ground of non-repair, the replication should have shown, at least, that the five miles first constructed had not been kept in repair; and to warrant the forfeiture of part for the same cause, the particular part, of which a forfeiture was sought, should have been in some way described and distinguished.
The second replication (which raises only the .question of repair) is defective in this respect: all that is properly alleged in it may be ftrietly true and yet the five miles may have been all along in good repair. The general
We have thus far considered the case as it depends upon the charter (and the act of 1848 a part of the charter), under which the company obtained their corporate rights. But the relator insists that, by the second section of the act of February 12th, 1855 — Comp. L. §1933 — the franchise is forfeited for the entire road, by a failure, as to any part of the road, to comply with this section. This brings us to the third replication, which appears to be framed entirely upon this section. As this section does not expressly refer to roads already existing under previous acts, I am inclined to think that, upon settled rules of construction, it should not be held to apply to such roads. “ Nova constitutio futuris formam debet imponere et non prceteritis.” See opinion of Kent J. in Dash v. Vankleeck, 7 Johns. 477 and authorities cited.
But if intended to apply to roads already constructed, it may be doubtful whether this section was intended to impose any additional obligation as to the condition of the road, beyond what was already imposed by the sixteenth and twenty-third sections of the act of 1848. By the sixteenth section of that act, the road was required to be constructed so as to have “ at least sixteen feet width of good, smooth and permanent road, eight feet of which at least should be of plank not less than three inches thick,” &c. By the second section of the act of 1855, just referred to, the company are required “ to cause to be laid down and kej>t closely together the plank upon its road, and in case of default it shall forfeit the right to receive
No such conclusion, I think, can reasonably be drawn in the present case. By the express provisions of the act of 1848 (§§16 and 28) which constituted the contract, both the convenience and safety of travel had been expressly contracted, and amply provided for, and the penalty •for a breach of the obligation expressly agreed upon, or
The fourth replication presents, first, the question of substitution of gravel for plank, under the act of February 19, 1857 (Comp. I. §1881) and secondly, the question of repairs. This is demurred to on three distinct grounds: 1st, that it is not sufficient to oust the defendants ; 2d, that it is bad for duplicity, and 3d, for uncertainty. It is unnecessary here to notice the first objection further than to say, that as relates to the question 'of forfeiture for the cause stated, this replication stands irpon grounds analogous to those of the second relating to the question of repairs, and is to be governed by similar considerations. Upon the question of duplicity the replication is clearly bad; not because it states a great number of facts in relation to the removal of plank, and the failure in substituting gravel according to the act; as all of these facts bear upon the single point of substitution’; — but because,
The defendants, I think, are entitled, to judgment on the whole record, but the People should be allowed to amend.
Concurrence Opinion
I concur in the views expressed by my brother Christiancy. I think that where, as in a portion of the special replications in this case, it is alleged as a ground of forfeiture, that the road has not been completed according to the charter, it must appear either that no portion of it has been so completed, within the time prescribed, or else what portion is left incomplete. The statute assumes that if a certain distance is completed, it will be, as far as it goes, a public benefit, and may be used by the company for tolls, making them liable to forfeit for non-completion only so much as remains incomplete. A total forfeiture can only be claimed for a neglect to complete the smallest distance allowed as a toll road. A partial forfeiture for non - completion must be confined to the parts unfinished for a sufficient length. And as the act points out what is necessary to completeness, no part of the road can be deemed completed which has not been laid out and built as the statute directs.
The case made by the replication, so far as it relates to a failure to build the road in a proper manner, sets up a partial, and not a total failure. It claims that some parts are incomplete, but does not show what parts. Neither does it show the aggregate amount complete or incomplete.
The allegations upon which a forfeiture is sought for neglect to keep the road in repair, are equally silent con
Both grounds of complaint are nearly analogous to prosecutions against corporations or other persons for allowing ways to become or remain out of repair. In such cases the rule is very well settled that the prosecution “must show with certainty the part of the road which is out of repair, how many yards in length, how many in breadth, &o. and must prove the case as laid.” Arch. Cr. Pl. 644, 645, 41. This rule is founded on principle, and is necessary to prevent a liability to repeated vexations, as well as to confine the evidence on the trial to some tangible issue.
While these reasons apply equally to both issues referred to, the necessity for certainty in setting forth the parts of the road unfinished rests upon a still further ground. Without showing on the record the portion claimed to have been forfeited, there is nothing to base a judgment upon, or to compare it with when rendered, to determine whether it corresponds with the issue. A judgment of partial ouster must show to what extent the defendants have incurred a forfeiture, and can not extend beyond the charges alleged against them.
I think all the replications are defective in substance, and that the demurrers are well taken.
By §5302 of the Compiled Laws, it is provided that an information in the nature of a quo warranto may be filed by the Attorney General against any corporate body, whenever such corporation shall; 1st, offend against any of the provisions of the act or acts creating, altering or renewing such corporation”; or, 2d, violate the provisions oí any law by which such corporation shall have forfeited its charter by misuser; or 3d, whenever it shall have forfeited its privileges and franchises by non - user; or, 4th, whenever
Nelson, Ch. J. in The People v. Kingston and Middletown Turnpike Road, 23 Wend. 204, says, in speaking of a like statute, that “it obviously intended that corporations should fulfil the conditions and perform the duties enjoined by the fundamental law of their creation, as the terms upon which to enjoy their privileges. The principle is not new: it has been always so held at common law as fundamental. Lord Holt said, in London City v. Wanacker, 1 Ld. Raym. 498, ‘ all franchises which are granted are upon condition that they shall be duly executed, according to the charter that settles their constitution: and that being a condition annexed to the grant, the citizens can not make an alteration: but if they neglect to perform the terms of the patent, it may be repealed by scire facias.’ The principle is so firmly fixed in the law of corporate bodies that I need do no more than refer to some of the authorities. A non-performance, therefore, of the conditions of the act of incorporation, is deemed per se a misuser, that will forfeit the grant even at common law.”
The twentieth section of the Plank Road Act of 1848, providing for the forfeiture of the part of the road not completed in ten years, I understand as intending to give the corporation- ten years to complete its road in, and to save to the corporation its franchises and the part of the road completed within that time, from the common law forfeiture of all its rights by its failure to complete the whole within the ten years. I can not bring my mind to believe it was intended to have any other or greater effect. The non - completion of the road in ten years is but one ground of forfeiture; the construction of the road in a manner not authorized by the act is another and dis
The information calls on defendant to show by what authority it claims to be a corporation with authority to construct and maintain “ a plank road, beginning at a certain point in the county of Jackson, and terminating at a certain other point in the county of Eaton, and of levying, collecting and receiving tolls from all persons using-such road,” &c.
The plea shows defendant to be a corporation to construct a plank road from Jackson, in the county of Jackson, to Michigan (now Lansing-) in the county of Ingham, by the way of Eaton Rapids, in the county of Eaton. And states that it had “ constructed and completed the same from Jackson, in the county of Jackson, to Eaton Rapids, in the county of Eaton,” and admits the erection of gates and the taking of toll.
To this plea there are five replications, to each of which the defendant has demurred.
The first replication states that “the said Jackson and Michigan Plank Road Company, after their incorporation, did not construct nor cause to be constructed their plank road of such grade as not to exceed an ascent or descent on any part of said road of more than one foot in ten feet, but on the contrary thereof did willfully or negligently construct the same in many parts thereof with a much greater ascent or descent, to wit: with an ascent or descent of more than one foot in eight; and the same still so continues.”
That this replication is good in substance I have no doubt. See The People v. The Kingston and Middletown Turnpike Road Co., 23 Wend. 193; People v. Bristol and Rensselaerville Turnpike Co., Ibid. 222; People v. Hillsdale and Chatham Turnpike Road Co., Ibid. 254, in which the question of forfeiture is fully considered.
If the forfeiture was of the part of the road impropely constructed, and not of the franchise, the objection would undoubtedly be good. But holding as I do that an improper construction of the road is a forfeiture of the franchise, I see no good reason for locating the parts improperly constructed. The whole of the road must be constructed in the manner required by the act. This is a condition to the enjoyment of the franchise, which the corporation must at all times be ready to show when legally called on for that purpose. The plea alleges a construction of the road from Jackson to Eaton Rapids. The replication, admitting the construction, says it was constructed in many places on a grade' of a greater ascent or descent than one foot in ten. Had the replication located the places, the People would no more be bound by them than by the day stated in an indictment that a murder was committed. For neither is of the essence of the issue. The replication is in every particular as certain as the replications that are held good in The People v. Kingston and Middleton Turnpike Co.
The first, second and fifth replications I think are good. That part of the second replication which states the road was not kept in repair by the hoard of directors or company may be regarded as surplusage. The replication is good without it. The third and fourth replications, I regard as bad.
Judgment for defendants, with leave to the People to amend.