1 Shan. Cas. 511 | Tenn. | 1875
special judge, delivered tbe opinion of tbe court.
By an act of the legislature of this state, passed on the 24th of May, 1866 [Acts 1865--6, cb. 121, sec. 59, p. 329], certain individuals and others who might thereafter become stockholders, were incorporated under the name and style of the “Nonconnah Pike Company.” Shortly after its passage the charter was accepted and the company duly organized. Subsequently, on the 9th of March, 1867, an act was passed [Acts 1866--7, cb. 66, sec. 23, p. 191], changing the name of the corporation to the “Nonconnah Turnpike Company.”
The provisions of the charter and amendments thereof, which it is important or material to notice, are the following, viz: The company was empowered to build the bridges and repair the levee across Nonconnah Bottom, on the Pigeon Roost road in Shelby county. The levee (which had prior to the war been owned by another company) was required to be graded and thrown up above high ■water, and be sufficiently wide to admit wagons to pass each other, with good and sufficient bridges across the main streams and sloughs. The- charter, after fixing the rates of toll which the company might charge, further provided
On the 11th of May, 1874, the present bill, in the name of the state, o>n the information of certain relators, was filed in the first circuit court of Shelby county against said Noncomnah Turnpike Company, under the provisions of secs. 3409, 3413, 3414, 3415, 3416, 3425 of the Code [Shannon’s Code, secs. 5165, 5169-5172, 5181], for the purpose of having defendants’ corporate rights and franchises declared forfeited, and to have the company excluded from the further exercise of such rights and franchises.
This bill 'relates specially to the Pigeon Boost road, and sets forth, besides others which need not- be noticed, two leading causes or grounds of forfeiture, viz.:
1st. That the defendant had failed to complete their road across Nonconnah Bottom, erect bridges over all the sloughs, and construct their road according to the conditions and requirements of the charter.
2nd. That the defendant had knowingly suffered and permitted its road to be and remain in such a state of bad repair for months together during the winter and spring of 1872, 1873 and 1874, as to greatly incommode and inconvenience the traveling public using the same.
The complainants, by their bill, demanded a jury, under the provisions of sec. 3416 of the Code [Shannon’s Code, sec. 5112], to try the issues of fact raised. The defendant answered, denying the material allegations of the bill, and
The defendant, moved for a new trial, and the court being of the opinion that there was error in its instructions to the jury on the fourth, fifth 'and part second of seventh issue, announced that a new trial would he granted defendant because of snob error, unless complainants would consent to modify the finding of the jury on said issues, so as to make them conform to the views of the court. The complainants consented to this modification of the finding of the jury, and the defendant’s motion for a new trial was thereupon overruled. It is now insisted for defendant, and we think correctly, that complainants are hound by this consent, and can only rely in this court for relief upon such rights as they may have under the verdict as modified.
The second part of the seventh issue charged that the $50,000 capital stock subscribed to defendant’s corporation was colorable — not in good faith — and never intended to be paid. This the jury found for complainants, but under the above action of the court and consent of the complainants, was modified and changed so as to make this issue found for defendant. That issue is not, therefore, before ns for consideration.
The fourth issue charged ‘ ‘that the defendant had suffered and knowingly .permitted its road to be out of repair, to wit: during the winter and spring of 1873-4, when the same was not above high water, and when the same was not sufficiently wide, with good and sufficient bridges across the main stream, and the bridges in said bottom, to permit wagons to pass each other.” This was found for complainants, but tinder above consent was modified by the court so that the word “knowingly” should not be taken or con
The fifth issue charged that parts of defendant’s road were willfully permitted and suffered to be in such bad repair for a long time, to wit: three months in 1873-4, that the traveling public could not conveniently pass over the same,” etc. This was found for complainants, but under the above order of the court and consent of complainants, was modified so* as to make the finding for defendant.
We do not deem it necessary to notice in detail the other issues of fact submitted to and found by the jury. For, after modifying the finding of the jury upon the three issues referred to above, as the complainants consented to do, it still clearly and satisfactorily appears from the verdict as modified and the evidence in the cause (and the court so declared by its decree), that Nonconuah Bottom, on the Pigeon Boost road, across which defendant was required by its charter to construct its turnpike, extended on the north to the foot of Brown’s Hill; that from defendant’s toll gate, on the south side of Noncomnah Creek and the southern boundary of said bottom, to the foot of Brown’s Hill, on the north side of the creek, was about one mile, the width of said bottom; that the defendant, up to the commencement of this suit and the date of the decree, November 9th 1874, had only constructed its road and built bridges on about three-fourths of that distance, its northern terminus ending at Thos. Carragin’s, where there was a small “bulge” or mound in the bottom; that it was one quarter of a mile from said Oarragin’s, or the northern terminus of defendant’s road, to the foot of Brawn’s Hill; that the ground was low, swampy, miry, with two or three sloughs crossing the road between said points; that over these sloughs there were no culverts or bridges, and that this portion of the bottom was, during the winter and spring and rainy seasons, literally impassable, compelling the traveling public at such times to aban
The bill was retained until the above work should be done, and the defendant was directed to report to the court
"We are clearly of opinion that the circuit court had no authority to grant the defendant time to comply with the requirements of its charter in the construction of its road, and extending it to Brown’s Hill, as was done by the decree of November 9, 1874. If such failure to construct or keep its road in repair had subjected the defendant to' a forfeiture of its charter, the court had no power to relieve it or condone the forfeiture. Courts possess no such dispensing power. See People v. Kingston & Middleton Turnpike Co., 23 Wendell, p. 211, where Chief-Justice Nelson says on the subject: “If the failure is such as cannot be disregarded in a court of law upon settled principles, and bas arisen from mistake or accident, the legislature will apply the. remedy. They and not the court possess dispensing powers.” Also, to the same effect, 27 Barbour, N. T. Rep.,
In support of the first ground of defense, we are referred
Under these authorities we are of the opinion that the defendant’s failure to construct the. road and build the necessary bridges oirer that portion of Nonconnah Bottom lying between Carragin’s and foot of Brown’s Hill, being one-fourth of the distance across said bottom, is such a substantial non-compliance with the requirement and conditions of its charter as to subject the defendant to a forfeiture thereof.
We are furthermore of the opinion, that the time given defendant by the acts of the 4th of March, 1867, and 12th of February, 1869, related alone to the, Memphis & ITollow lord, the Memphis & Hernando, and the Memphis & Horn Lake roads, over which defendant’s franchise was extended by said act of March 4th, 1867: The reference made in said act to the Pigeon Boost was simply to- show what the defendant’s rights, privileges and inimuniths were over these three new roads thus brought within its charter. Even i.f these acts be held to have extended the time for the completion of said Pigeon Boost- road for four years
Again, as -already stated, the defendant’s fanchise by the act of March 4, 1867, was extended over the Memphis & Hernando, the Memphis & Hollow Ford, and the Memphis & Horn Lake road, across Nonconnah Bottom, with the same privileges and duties granted and imposed by the act of incorporation as to the Nonconnah Bottom on the Pigeon Roost road. They accepted this amendment', and by act o>f February 12, 1869, were allowed four years from that date within which to construct the levees and build the bridges across said bottom, on each of said roads-.
It appears from the record in the -suit of -State of Tennessee, at the relation of Tally et al. v. Smith et al., heard ■with the present case, that the defendant has only constructed its levee and built bridges -across Nonconnah Bottom, o-n the Memphis & Hernando road; that it has declined to build the levees and bridges -across said bottom on the Hollow Ford and Horn Lake roads, which it claims the right to abandon or drop from its franchise. Has it the right to do so? It is manifest that the object of the legislature was to give the public the- benefit of a good turn
This conclusion renders it unnecessary to discuss the second branch of the case, as to the non-repair of that portion of the road which defendant did construct.
It follows that the judgment of the circuit court must be reversed and judgment of forfeiture be declaaed, annulling and vacating defendant’s charter, with costs.