People v. President of Hillsdale & Chatham Turnpike Road

23 Wend. 253 | N.Y. Sup. Ct. | 1840

Cowen, J.

By the Court, The sufficiency of the pleadings in this case have not been questioned. The seventh replication, under which the special verdict was found, is too general to be maintained for any purpose, though this objection might be answered by showing substantial defects in the plea. I make the remark, in order to avoid such a replication being drawn into precedent; not to raise a point which the parties have doubtless waived by mutual consent, for the purpose of reaching the merits. This they had a right to do. The arguments of counsel thus having been confined entirely to the special verdict, I have accordingly considered that only as presented for our examination. The better opinion, perhaps, is, that a destruction of bridges which,.by not being restored, leaves the road impassable for any considerable length of time, presents such a state of non-repair as would work a forfeiture at common law. The road thus becomes and continues to be a public nuisance. The verdict finds that it was permitted to want a degree of repair which every turnpike company undertakes and is bound by law to bestow, as the consideration of their right to tolls and other franchises. But whether that be so or not, it is impossible to avoid seeing, on this finding, that the ordinary business of the corporation must have continued *in a state of suspense for a year or. more. We have [ *257 ] had a statute ever since April, 1825, which provides that, “ Whenever any incorporated company shall, for one year, have suspended the ordinary business of such incorporation, such company shall thereby be deemed and adjudged to have surrendered the rights, privileges and franchises, granted by any act of incorporation, and shall be deemed to be dissolved.” Act of 1825, Sess. Laws, 455, § 6. 1 R. S. 604, 605, § 4, 2d ed. That is to say, an information may be filed, and pursued to judgment of dissolution; not that the corporation shall be deemed at an end without such proceeding. Bank of Niagara v. Johnson, 8 Wendell 645, 654. Vide 9 id. 382. Atchafalaya Bank v. Dawson, 13 Louisana R. 497, 504. Both these cases cite and explain Slee v. Bloom, 19 Johns. R. 456, 473. The finding of the jury brings the company within the very words of the act. This, according to the case cited from 13 Lou. R. would not of itself destroy the existence of the corporation, even if it had declared the suspension to be ipso facto a dissolution, but would only be understood as furnishing a substantive ground for a judicial proceeding. Indeed, it was not even questioned by the defendant’s counsel, that, if a suspension were found, within the wrnrds of the act, and the ground of forfeiture so furnished where not done away by the circumstance of there being other remedies, or by some matter in excuse, or in bar, judgment must pass against them.

It is accordingly insisted for the defendants, that the public were furnished by law with other remedies besides this information, such as opening the gates, which it seems was in this case actually done, or an action, &c. The value of this objection, I had occasion to consider in The People v. The Directors of the Bristol and Rensselaerville Company, ante, 222. I am entirely satisfied it could form no bar to this proceeding, even admitting, what does not appear, that the gates were opened under the judicial order of an inspector of turnpikes, pursuant to the statute. 1 R. S. [ *258 ] 588, 589, 2d ed. Such a step if noticeable at all, would *operate rather to ascertain and strengthen the case against the company, than 'as furnishing matter of defence.

But it is said non constat that the road may not have been in fact repaired and under full operation previous to the commencement of this suit, which it is supposed, on the authority of The People v. The Niagara Bank, 6 Cowen, 196, 211, would be a bar. But I do not understand that case as laying down any such thing by way of general 'position; Such a doctrine would, I apprehend, be entirely without precedent. When a cause of forfeiture has once arisen, whether from nonfeasance or otherwise, no case nor dictum can be found that it shall be legally atoned for by subsequent good behavior. The authority cited, turned upon the construction of a statute-providing for the particular case of the Niagara Bank stopping payment. The argument goes to prove that a corporation may practice all manner of abuse by commission or omission, if it be careful to stop before the attorney-general can be informed, and institute a prosecution.

It is said the "defendants may be entirely without fault; that the bridges may have been carried off by inevitable accident, and that, to warrant a forfeiture, the jury should have found neglect. That is a question I also examined in The People v. The Bristol and Rensselaerville Company. I there inclined to think the finding of neglect would be material, as to a single act of non-feasance, though I thought it quite doubtful, whether so much were necessary, even at common law, in respect to a general state of non-repair. But the case before us is made a cause of forfeiture by statute. If the bad repair was occasioned by a flood or any irresistible cause, it lay, I think, with the defendants to show that fact. Beside, the jury find that the road was permitted to remain out of repair; by whom ? By every body, including the company. The permitting this so long as a year or more, shows that they did not fulfil the trust confided to them by the public. We are told the statute of incorporations says nothing about the bridges. This omission may indeed take the case out of the first subdivision of § 39 of 2 R. S. 483, 2d ed. But the bridges are an essential part of *the road. It appears by the verdict,, to be impassable without [ *259 ] them. To keep them in repair, therefore, was a part of the defendants’ general duty, a violation of which works a forfeiture at common law; and, continued for a year, so as to interrupt the ordinary business of the company, it is beside made a specific ground of forfeiture by another statute which I have cited, and endeavoured to explain.

I agree that, to warrant judgment on a special verdict, all the essential facts, not. merely evidence of facts, should be found by the jury, according to the case cited of Barnes v. Williams, 11 Wheat. 415. I think they have been so found in this case, upon the head of non-repair and suspension of business. The case in Wheaton was directed, by counsel particularly, to another branch of the special verdict: that which respects an irrégularity in the election of directors, which is very imperfectly stated; but I do not go upon that.

It is true, as I thought in The People v. The Bristol and Rensselaerville Turnpike Company, that the award of the commissioners and governor’s license, are conclusive as to the construction of the road, up to the time of the award. But its ill condition is found to have existed many years since the licence was granted. I do not regard the finding on any of the issues so far as it is contrary to the award. On the whole, I think there should, in this case, be judgment of ouster and dissolution.

The Chief Justice and Mr. Justice Bronson concurred in the views expressed, as above, by Mr. Justice Cowen, except as to the effect of the governor’s license to erect gates. In respect to which they differ in opinion with Mr. Justice Cowen, and entertain the view’s set forth in the opinion of the Chief Justice, in The People v. The Kingston and Middletown Turnpike Company, ante, 193.

Judgment of ouster and dissolution.