22 Kan. 438 | Kan. | 1879
Lead Opinion
The opinion of the court was delivered by
This is an action in the nature of quo warranto,, brought originally in this court by the state of Kansas, ex rel. James W. Green, county attorney of Douglas county, as plaintiff, charging C. W. Babcock and his associates with wrongfully assuming to exercise corporate rights
There is no hardship in this result.. Toll-roads or turnpikes and plank roads, constructed under public authority for public use by incorporated companies, with provisions in the acts of incorporation for their management, are common highways; and the only difference between them and other common highways is, that instead of being made at the public expense in the first instance, they are authorized and laid out by public authority and made at the expense of individuals or corporations in the first instance, and the cost of construction and maintenance is reimbursed by tolls, levied by public authority for the purpose. (Angelí on Highways, §§ 8, 9 and 14.)
By analogy, considering the manner the bridge in controversy was built, its situation and use, it bears a close relation to toll and plank roads. In this case, the bridge company has received tolls for over fifteen years, and located as the bridge has been at a point of great travel and business interests generally, it is very probable that the tolls have been more than sufficient to repay the cost of its construction and maintenance. At least, we may assume that this was the hope of the corporators in accepting the provisions of the charter, and in constructing the bridge; and we cannot believe they have been the unfortunate victims of a harsh contract. If not, no injustice is sustained by them, that the bridge on the expiration of their franchise or license to take tolls, becomes free to the use of every citizen, as other public highways. If the claim of defendants is valid, that the bridge itself is the private property of the stockholders, to be hereafter managed by them or through their trustees, then the expiration of the charter of the corporation would be beneficial rather than in
The injunction prayed for in the petition of plaintiff will be granted, and such injunction will be made perpetual. Costs are also adjudged against the defendants.
Concurrence Opinion
I concur with the Chief Justice in the first and second propositions stated in the syllabus of this case. I have no doubt concerning the uncónstitutionality of §25 of the corporation law of 1868. (Comp. Laws of 1879, p. 220.) For while said section, so far as it applies to this case, is in form a general law, yet it is in fact nothing but an
It seems to me that the grave question in this case is as to the unconstitutionality of said § 25. It certainly is in form a general law. It purports to apply not to a single corporation, but to all corporations of a particular class. A law concerning cities of the first class applies at present to only a single corporation, but as it applies to all corporations of that class it is unquestionably a general law. This section not only purports to apply to all corporations of a particular class, but does in fact apply to many corporations. It grants to all such corporations the same power — that of self-perpetuation; and while the wisdom of such legislation may be doubted, yet I am not clear that it is beyond the legislative power. But my associates are clear that the section, so- far as this case at least is concerned, is unconstitutional, and that therefore all charter privileges of the defendant have ceased.
It seems to me to follow from this that the plaintiff is entitled to judgment; for I agree with the Chief Justice, that the bridge is a permanent structure on the public highway, and under the authorities, when the franchise to take tolls ceases, the right of the public to use the bridge free from any burden of tolls attaches, without any right on the part of the builders to remove the structure and destroy the highway. The right to take tolls for a specified number of years was the consideration granted by the public to the defendants for the privilege of placing this improvement on the highway, and the former owners have now no more right to remove the bridge than the owners of a turnpike to tear it up after the franchise to take tolls has ceased.