State ex rel. Hines v. Scott County Macadamized Road Co.
105 S.W. 752
Mo.
1907
Check Treatment

*61IN DIVISION TWO'.

GANTT, J.

— This is a proceeding ex-officio by tbе prosecuting attorney of Cape Girardeau county to perpetually enjoin tbe defendant, its officers, agents, servants, successors and assigns from maintaining a public, continuing nuisance by obstructing a public highway in said county, known as the Scott County Road and sometimes as the Rock levee across the Big Swamp from the city of Cape Girardeau to the bluffs in Scott county, by maintaining on and across said highway, toll gates and exacting toll from the public who have occasion to use said highway. The petition alleges that said road is a public highway and has been such for more than thirty years; that the defendant is a corporation organized under the laws of this State, and without authority it maintains on and across said highway at various points, bars and obstructions commonly called toll gates, and that it prevents the public from making free and proper use of such highway and. that such toll gates are a continuous public nuisance. By consent of parties, a change of venue was granted to St. Francois county. The defendant then filed an amended answer to plaintiff’s petition. This amended answer consists of a general denial and an affirmative defence that no portion of said road was ever a free public highway, and that the public never had any interest in said highway; that said toll gate® and tolls collected are authorized by law; that the defendant is a corporation duly organized and as such is authorized to own a turnpike road as above described, and that the portion of this r.oad that passes across the Big Swamp was constructed in the years 1853 and 1855 by its grantor, “The Cape Girardeau and Scott County Macadamized Road Company. ’ ’ That in the years 1872 and 1873, the said last-named company procured its right of way along the north side of said swamp by *62condemnation, donation and purchase and finished the construction of its road to the city of Capе Girardeau; that said road so constructed to the city of Cape Girardeau was maintained and kept in repair from the time of its construction up. to the present time by defendant and its grantor; that the same has been used as a public thoroughfare, travelers thereon paying the tolls at all these times fixed and exacted; that the expenditures for maintaining said road have about equalled the receipts from tolls; that dividends to stockholders have been very small, not enough to reimburse them for the outlay for the construction of said road; that the said Cape Girardeau and Scott County Macadamized Road Company was created by act of the Legislature, approved February 24, 1853; that by the provisions of said act said Macadamized Road. Company was granted the exclusive privilege of constructing a macadamized road across the Big Swamp in the county of Cape Girardeau, with the privilege of extending the same to the city of Cape Girardeau, and that said company should have perpetual succession as such, and that at any time after the expiration of twenty years, the counties of Cape Girardeau and Scott should have the right to purchase said road for the purpose of making the same a free road, but that in the event that said sale should be made, the said counties of Cape Girardeau and Scott should pay to said company the actual cost of the construction of the same. That relying upon said act, believing that the terms and provisions thereof would be upheld and carried out by the State, said company went to work as soon as could be done after the passage of this act, to construct and build, and during the years 1853, 1854 and 1855, did build and construct said road and complete the same across the Big Swamp, in accordance with the requirements, of said act, and afterwаrds in the year 1873 did extend the said road *63to the city of Cape Girardeau; that said road was built by said company at great expense for labor and niaterial, to-wit, thirty thousand dollars; that said company was at all times willing to sell said road to said counties in accordance with requirements of said act, but said counties wholly failed and refused to buy said road. And defendant further alleges that it acquired said road from the said Cape Girardeau and Scott County Macadamized Road Company, by issuing to the stockholders of the said company fifteen thousand dollars of the paid up capital stock of this defendant for said road.

Defendant further answering says that the proceedings of plaintiff under this petition violate sections 4, 15, 21, 30 and 32 of article 2 of the Constitution of the State of Missouri, and section 9, paragraph 3, and section 10, article 1, section 4 of article 4, and the 5th and 14th amendment of the Constitution of the United States, which provides that the private property, to-wit, the property of this defendant, cannot be taken without due compensation and process of law, and defendant pleads said several sections and provisions of the Constitution of the United States and the State of Missouri in bar to the pretended cause of action set up in the petition and proceedings of the plaintiff in this behalf instituted. The defendant for further answer says that it purchased the said road for the sum of fifteen thousand dollars in its full paid up capital stock, which was delivered to the last board of directors and trustees of the Cape Girardeau and Scott County Macadamized Road Company, and defendant avers that under the laws of the State of Missouri, after the expiration of the charter of the Cape Girardeau and Scott County Macadamized Road Company, the last board of directors and trustees of said company had good right to sell and convey the private property and assets belonging to said Cape *64Girardeau and Scott County Macadamized Road Company to a new company organized for the purpose of owning said road; and that it was the well-settled policy, established by the laws of this State, to authorize a conveyance of the property belonging to said corporation whose charter had expired to convey its property to a new corporation organized in that behalf. And defendant denies that the stockholders of the said Cape Girardeau and Scott County Macadamized Road Company have ever been reimbursed in full or for ,any part of the capital invested by it in the construction of the said road,. and that under the laws of this State said company was authorized to transfer all the property it owned at the time of the expiration of its charter to another corporation organized tо take over and operate the said road, and this defendant avers that for valuable consideration it has acquired the said road and all the assets, land and property of the said company and is now the lawful owner thereof and in lawful possession thereof and has acquired a fee and title in fee simple to the said road and right of way sixty feet wide from the owners of the fee adjacent and bordering upon the said road and that plaintiff has no interest or right to the said road in law or equity. And having fully answered prays that the temporary injunction be dissolved and the defendant be discharged with its costs.

To this answer a reply was filed' denying all the new matter set up in the answer and especially pleaded that by the Act of February 24, 1853, the Cape Girardeau and Scott County Macadamized Road Company had authority to build a macadamized road from Cape Girardeau to Scott county and keep the levee aforesaid for a period of fifty years; that said right expired on the 24th of February, 1903, whereupon the said road so constructed by said company was and became a free public highway disburdened of the right of said *65Macadamized Road Company to take tolls thereon; that said Macadamized Road Company had no power or authority to acquire any fee simple title whatever, and its only right was to acquire an easement or right of way for the purpose of said road, and that' it did not acquire any fee simple title to the roadbed and had no authority to sell to this defendant or any one else its right to take tolls or its roadbed; that the stockholders of the said Macadamized Road Company after the expiration of its charter, in order to deprive the public of its free public highway, organized a new corporation known as the “Scott County Macadamized Road Company,” and caused a pretended conveyance to be made by the last board of directors of the old com-, pany of the roadway, property and- franchises of the said Cape Girardeau and Scott County Macadamized Road Company to this defendant. That the defendant company had no assets; that no money was paid for its capital stock and the whole transaction was a scheme contrived to attempt to perpetuate the wrongful and unlawful claim to take tolls forever over the road aforesaid. And relator avers that the entire road now claimed by the defendant from Cape Girardeau to the north end of the levee across the levee in Scott county was by its construction and opening to the public, dedicated by the company constructing it to the public, and thereby became and was and has ever since been a public highway used by -the public at all times subject only to the right of the former comрany to maintain toll gates up to February, 1903-. And that at the expiration of the charter of the said Cape Girardeau and Scott County Macadamized Road Company, all the roadway, rights and franchises of said company vested in the public and said road became a free public highway by operation of law, and the defendant is unlawfully obstructing said highway *66by its toll gates to tbe great injury of the public, and again prays judgment for a perpetual injunction.

Upon the trial the following facts were developed):

By the Act of the Legislature approved February 24, 1853, Laws 1853, p.. 337, “The Cape Girardeau and Scott County Macadamized Road Company” with the capital stock of fifteen thousand dollars was created a body politic. The company was given ‘ ‘ the exclusive privilege of constructing a macadamized road across the Big Swamp in the counties of Cape Girardeau and Scott, where said swamp commences below the city of Cape Girardeau, and running across said swamp a distance of three or four miles, with the privilege of extending the same to the city of Cape Girardeau.”

The circuit court after a full hearing rendered a decree for the plaintiff perpetually enjoining the defendant, its officers, agents, servants, successors and assigns from further maintaining toll gates on and across said road and from in any way interfering with the public in the free use of said highway.

I. At the threshold of the consideration of this appeal, we are met with the suggestion of the plaintiff that this court is without jurisdiction to determine, it for the reason that no constitutional question is involved in its determination. It will be observed that the defendant in its answer assails this proceeding on the ground that if permitted it would he a denial of due process of law and am impairing of the obligation of *69its contract with the State and a taking of its property without just compensation and pleads the sections of the Constitution which guarantee that immunity. Counsel for plaintiff in urging that this court is without jurisdiction insists that that question cannot arise for the reason that the State is not seeking to recover the toll houses, gates and other personal property of the defendant, but is asking only that its citizens be permitted to travel over the surface of this highway without payment of unlawful toll. It is true that this is the purpose of the action, but it is also true that defendant asserts a fee simple title in the road and at least a right to an easement over it, and that this proceeding would impair the obligation of the contract with the State and of its grantor, which if sustained by this court would necessarily defeat the injunction; and while it may be that upon a full investigation of these questions, the result will be reached that no constitutional right ‍‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌‌​​‌​​‌​​​‌‌​​‌‌​‌​​​​​‌‌‌​​‍of the defendaut has been or will be infringed or impaired by this proceeding or the judgment of the circuit court, we are of the opinion that a constitutional right is sufficiently asserted under all the circumstances to put the jurisdiction in this court instead of the Court of Appeals. If transferred to the Court of Appeals, these same questions would be presented there, and thatcourtmustnecessarilydecide, first, whether a constitutional question was raised, and, second, whether there was merit in it. While we have ruled that we will look sufficiently deep into the record to ascertain whether jurisdiction properly belongs to this court and will not entertain it merely because some section of the Constitution is named, still where the question is mooted and we can see that the constitutional question must be passed upon even' though adversely, we think it is our duty to hold jurisdiction of the case, and accordingly we shall dispose of the appeal on its merits in this court.

*70II. In State ex rel. v. Hannibal & Ralls County Gravel Road Co., 138 Mo. 332, without discussion, a proceeding by injunction to restrain a corporation whose charter had expired from charging and taking tolls upon a public highway, was sustained. Afterwards, in State ex rel. v. Gravel Road Company, 187 Mo. 439, the propriety of that ruling was questioned, but as it was ruled in that case that this court had no jurisdiction of the appeal and as a majority of the court did not concur in the views of Judge Marshaü, that quo- warrcmto was the only remedy for such a wrong, and that аs it was a legal remedy injunction would not lie, it cannot be considered that the decision in State ex rel. v. Gravel Road Co., 138 Mo. 332, has been authoritatively disapproved by this court, or either division thereof. After the case of State ex rel. Jump v. Gravel Road Company was transferred by this court to the Court of Appeals, that court, in 116 Mo. App. 175, held that injunction was a proper remedy to prevent a continuing public nuisance and it was proper for the prosecuting attorney of the county to institute such a proceeding ex officio. The Court of Appeals, while conceding that the State might have proceeded by quo ivarrcmto against the corporation to oust it of its charter and franchise, proceeded to take up the question on principle whether injunction could also be resorted to, and reached the conclusion that the great weight of authority in this country, as well as in England, was to the effect that in addition to the remedy at law by quo wаrranto, it is now settled that a court of equity may take jurisdiction in cases of public nuisances upon information filed by the Attorney-General or other proper officer authorized to represent the State. Thus in City of Georgetown v. Alexandria Canal Company, 12 Peters 91, the Supreme Court of the United States sustained the jurisdiction of the court of equity, on the ground that equity can *71give more adequate and complete relief than can he obtained at law. In Attorney-General v. Jamaica Pond Aq. Corp., 133 Mass. l. c. 363, it was said: “The eases are numerous in which it has been held that the Attorney-General may maintain an information in equity to restrain a corporation, exercising the right of eminent domain, . . . from any abuse or perversion of its powers which might create a public nuisance or injuriously affect or endanger the public interests.” [Agar v. Regent’s Canal Co., Coop. temp. Eldon, 77; Attorney-General v. Railroad, 1 Dr. & Sm. 154; Attorney General v. Railroad, L. R. 3 Ch. App. Cas. 100; Attorney-General v. Railroad, L. R. 11 Ch. D. 449; Attorney-General v. Railroad, 4 DeG. & Sm. 75; Attorney-General v. Cohoes Co., 6 Paige 133; People ex rel. v. Newburgh & S. Plank Road Co., 86 N. Y. 1.] As said by the Court of Appeals, “If the collection of the tolls was a nuisance, maintained in the public highway, then it was the right of the public to have such nuisance abated or restrained forthwith and it was the duty of the State in its sovereign capacity to institute such proceeding in that behalf as would render to its citizens immediate reinstatement of a free and unincumbered highway. A proceeding by quo warranto would have been of a tedious nature where the relief sought could only be adjusted upon a final determination of the cause, whereas a proceeding by injunction would afford immediate and adequate relief inasmuch as the restraining order of the court could be had forthwith, and the otherwise constant and recurring nuisance be thereby abated during the pendency of the suit, the ultimate result being the same in either proceeding. And, indeed, the daily practice of unlawfully exacting tolls from those persons using the road was a standing and continuing infringement of their rights, which could be immediately relieved only by the extraordinary process *72of injunction, and upon each successive exaction of toll, a right of action arose in favor of the person who was required to pay the same against those persons so unlawfully exacting it, which could he adjusted between the parties only by a multiplicity of suits at law. ’ ’ We have no doubt whatever that this proceeding by the prosecuting attorney ex-officio to abate this public and continuing nuisance was and is the proper remedy. ‍‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌‌​​‌​​‌​​​‌‌​​‌‌​‌​​​​​‌‌‌​​‍Since the decision of this court in State ex rel. v. Gravel Road Co., 138 Mo. 332, the Legislature of this State, at the regular session in 1901, enacted a new section to article 5 of chapter 151, Revised Statutes 1899, known as section 9547, which provides: “The control and management of all graveled or macadamized roads of this State, which may have been originally constructed by any corporation, whеther organized under special act of the Legislature or under general law, whose charter life has expired or may hereafter expire, shall immediately pass to and vest in the county court in which such road may be situated, and in all cases where such corporation whose charter life has expired by limitation or otherwise is in the possession of and in control of such roads and is collecting tolls thereon, it shall be the duty of the prosecuting and circuit attorneys of the respective counties or circuits through which such road or roads may run to prosecute suits in the name of the State at the relation of such attorneys to enjoin, restrain and prohibit such corporations from collecting such tolls, and such suits may be prosecuted in the name or names of one or more citizens of such counties or circuits who reside in the vicinity of such roads and travel over the same, and in case the circuit or prosecuting attorneys fail or refuse upon request to prosecute the same, any citizen may in the name of the State at the relation of said citizen prosecute such suits to the same extent and in the same manner as *73the circuit or prosecuting attorney could have done.” [Laws 1901, p. 235.] It would seem that neither our learned brother who wrote the opinion in State ex rel. v. Gravel Road Co., 187 Mo. 439, nor the Court of Appeals when preparing its opinion in the same case in the 116 Mo. App. 175, had his or its attention called to this new act, which evidently was intended to embody in the statute law of this State the principles approved in State ex rel. v. Gravel Road Company, 138 Mo. 332, and State ex rel. v. Gravel Road Company, 37 Mo. App. 504.

III. The defendant insists that the act of February 24, 1853, incorporating the Cape Girardeau and Scott County Macadamized Road Company, Laws of Missouri 1853, page 337, conferred upon it continuous and uninterrupted succession and that the charter of the said company did not expire on February 24, 1903, by limitation, or in other words, at the end of the fifty years prescribed by the 8th section of said act, for its existence. The learned counsel concedes that this court, in State ex rel. v. Payne, 129 Mo. 468, settled the law adversely to- its contention, and that that case was followed and approved in State ex rel. v. Gravel Road Company, 138 Mo. 332, in which cases it was held that the words “perpetual succession” implied nothing more than a continuous succession during the existence of the corporation as is fixed by its charter. But we are asked by the learned counsel to review those decisions and to hold that, notwithstanding the limitation in the act for the exercise of the privileges conferred, the words “perpetual succession” created a perpetual charter in the Cape Girardeau and Scott County Macadamized Road Company. We have read with interest the argument of the learned cоunsel, and the authorities to which they refer, but have not been convinced that our previous rulings in the cases just cited were incorrect; on the contrary, *74we are more than ever satisfied with the absolute soundness of the conclusions reached In those- decisions upon this point and that they correctly overruled Fairchild v. Masonic Hall Association, 71 Mo. 526. Chancellor Kent in 2 Kent’s Com. (14 Ed.), 267, long ago announced- the true meaning of the words perpetual succession in corporate charters, wherein he says: “It is sometimes said that a corporation is an immortal as well as an invisible and intangible being. But the immortality of a corporation means only its capacity to take in perpetual succession so long as the corporation exists. It is so far from being immortal that it is well known that most of the private corporations recently created by statute are limited in duration, to a few years.” In 7 Am. and Eng. Ency. Law (2 Ed.), 684, it is well said: “When it is said that one of the distinguishing features of a corporation is the capacity of perpetual succession, this must be understood to mean a potential, not an actual perpetuity; a capacity, as contradistinguished from partnerships and other voluntary associations, to continue in existence indefinitely, up to the period of its constitutional or statutory limitation, in spite of the withdrawal or death -of any of its members.” And in 10 Ency. Law and Procedure, page 148, it is laid down that these words, “perpetual succession,” “mean in a general sense that the corporation is endowed with the faculty of existing forever unless the same or another statute or the Constitution has fixed and limited the term of its existence. In other words, the terms ‘perpetual succession’ are understood to mean indefiniteness of duration, and do not refer to length of time, but rather convey the idea of regularity or unbroken continuity of existence.” [See, also, Field on Corporations, sec. 57; Ang. & Ames on Corporations, sec. 8.] So, that it must be held that by the limitation in the 8th section of the act incorporating the Cape Girardeau and Scott County *75Macadamized Road Company, the charter of that road expired on the 24th of February, 1903.

IV. But it is insisted that notwithstanding the charter of the Cape Girardeau and Scott county Macadamized Road Company expired on the 24th of February, 1903, that fact did not and could not impair or destroy the title of the said corporation in the said macadamized road and it must be regarded as property within the meaning of both the State and the Federal constitutions, and that the last board of directors of said corporation as trustee for the said corporation had the capacity and power to convey the same to the defendant herein or to consolidate with the defendant herein and thereby transfer the title for the road to the present defendant company, which is incorporated to build and own a toll road. And that this proceeding seeks to deprive the defendant of its property in said road, which it acquired from said defunct corporation, without due process of law and without compensation.

To rid this question of all confusion, it may be well to remark that by this proceeding the State does not claim or seek to recover by this action the toll houses, gates or other personal property of the appellant, but seeks only to restrain and prohibit the defendant from longer obstructing this road, which the State insists became on the 24th of February, 1908, a free public highway disburdened of the public and continuing nuisance of toll gates across the same and the exaction of illegal tolls by the defendant, its agents, servants and employees. And thus we are brought to the real contention in this case, to-wit, what was the character of the rights аcquired by the Cape Girardeau and Scott County Macadamized Road Company under its charter of 1853. By reference to the act itself, it will be seen that this corporation was created for a public purpose, to-wit, that of constructing a macadamized road across the Big Swamp in the counties of Cape Girardeau and *76Scott, with the privilege of extending the same to the city of Cape Girardeau, with the privilege of taking tolls from all persons who should travel thereon and to enforce the collection of the same by erecting gates or turnpikes to obstruct the passage over said road until the tolls fixed by the act were paid. And the right to exercise this privilege was expressly limited to fifty years. No power was granted to said corporation to obtain a fee simple title to the land over which said road should be constructed. The only right granted to it was to obtain an easement or right of way fоr its said proposed road. The nature and character of turnpike roads was fully examined in State ex rel. v. Gravel Road Company, 138 Mo. 332. It was there said: “Now, a turnpike is a highway differing neither in the responsibility for its proper maintenance nor in any other particular from an ordinary highway, save in the mode of constructing and maintaining it. An ordinary public road is maintained and repaired by taxes ; a turnpike is supported ‍‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌‌​​‌​​‌​​​‌‌​​‌‌​‌​​​​​‌‌‌​​‍and maintained by the tolls exacted. A turnpike is regarded in law as a public easement and not as private property. Every traveler has the same right to use it, paying the toll established by law, as he would have to use any other highway. These principles are well established. [Com. v. Wilkinson, 16 Pick. 175; Craig v. People ex rel., 47 Ill. 487.] The public character of the easement is made more manifest when the charter of such companies permits the condemnation of real estate in acquiring their right of way as was granted by the act of 1851, section 8, page 261. [Knox Co. v. Kennedy, 92 Tenn. 1.] And as if to emphasize this view it has often been ruled that when the charter permitted the use of an established highway for a turnpike it imposed no additional burden upon the adjoining landowners by changing the highway into a toll road, on the principle that the character of the easement was not ehang*77ed, the road remaining a public highway. [Carter v. Clark, 89 Ind. 238; Chagrin Falls & Cleveland Plank Road v. Cane, 2 Ohio St. 419; Panton Pike Co. v. Bishop, 11 Vt. 198; Callison v. Hedrick, 15 Gratt. 244; Douglass v. Boonsborough Turnpike Road Co., 22 Md. 219; Wright v. Carter, 27 N. J. L. 76; Walker v. Caywood, 31 N. Y. 51.] ” And in that same case-, the question now presented arose and was determined, and it was said: “Having reached this point [to-wit, the date on which the charter rights of the company expired] we are confronted with the question, what becomes of the turnpike or plank road after the franchise expires ¥ We think that the weight of authority and sound reason concur in holding that upon the termination of the franchise the road remains as before a public highway, wholly free from the burden of tolls. Particularly is this true when, as under our statute, the turnpike company merely acquires an easement in the road during its charter life, and not a fee in the land on which the road is laid out. The easement in a turnpike as well as in an ordinary road is vested in the public and when the turnpike company’s charter expires, its easement ceases, but the easement of the public continues until revoked by law. [State v. Maine, 27 Conn. 641.] In Railroad v. Com. ex rel., 104 Pa. St. 583, the Supreme Court of Pennsylvania states the law in these words: ‘The question is, did the forfeiture of the charter of the turnpike company wholly destroy the character of the road as a public highway? The right of the company to take tolls was ended. Its liability to keep the road in repair was terminated, yet the road as a public highway remained. No- judgment or decree had destroyed its character as such. It had been dedicated to public use. The forfeiture of the charter of the turnpike company destroyed the rights of that corporation; yet the road still remained, in fact and in law, a public highway.’ [Craig v. Peoplе ex rel., 47 Ill. 495.] And *78in McMullin v. Leitch, 83 Cal. 239, it was held that the road becomes a public highway by dedication at the time of its construction subject to the right of the company to collect the tolls for the period prescribed by statute, and at the termination of such period neither the company nor stockholders have any interest in the road for which they are entitled to compensation. [27 Am. & Eng. Ency. Law, 324, et seq.]”

In addition to the authorities above quoted the learned circuit Judge wlm tried this cause has added others, among which is Virginia Canon Toll Road Co. v. People ex rel., 45 Pac. 398, 22 Colo. 429. In that case a company was formed in 1865 for the purpose of establishing a toll road. The company’s existence was for a term of twenty years. In 1881 the respondent company was formed for the purpose of acquiring and did acquire as far as they could be alienated, all the rights, property and franchises of said first company. This action was brought in 1896, to exclude the respondent from its аssumed franchise to collect tolls, and that the corporation be dissolved. A demurrer to the petition was overruled, which action of the lower court was sustained by the Supreme Court. The court, through Campbell, J., among other things, says: “A toll road is'a public highway, differing from ordinary public highways chiefly in this, that the cost of its construction in the first instance is borne by individuals, or by a corporation, having authority from the State to build it and further in the right of the public to use the road after its completion, subject only to the payment of toll. The acceptance by the corporation of the franchise to construct the road and the operation thereof constitutes a dedication of the same as a public highway. The right of a corporation, or of an individual, to exact tolls is not of common right, and, in this country, does not exist in the absence of a grant from the Legislature. This power of collect*79ing tolls is a part of the sovereign power of the State, . which the Legislature may delegate in return for a supposed public good, and the grant of the power may be conferred with any restrictions which the Legislature may see fit to impose, and the grantee takes subject to all such limitations, and the grant of the right is the equivalent of, or compensation for, the cost of building and maintaining the road.....But if we assume that the Wagon Road Company might alien its franchises to collect tolls, and that the defendant Toll Road Company now has, by purchase, all the tangible property of the former company, and also the franchise to exact tolls which its grantor possessed, it must logically follow that, as the result of such acquisition, the grantee company has only the same powers which its grantor had, and no different or enlarged powers. In other words, whatever limitations or burdens existed against the grantor, still exist as. against the grantee. The inquiry then is, what is the extent of the рowers of the Wagon Road Company? Under the territorial act of incorporation the Wagon Road Company’s existence as a corporation expired in 1885'. It was then legally dissolved as a corporation, and was thereafter incapable of exercising its franchise to collect toll. Neither could it, by a conveyance madf during its incorporate life, impart to any other corporation, or to a natural person, the power to continue the exercise of its corporate franchise after that franchise itself expired by limitation of law. The limitation in the general incorporation act of the territory of twenty years as the term of existence of the company operates in the same way as though by express words the exercise of the power to collect tolls was limited to twenty years. [Elliot, Roads & S., 83; 27 Am. & Eng. Ency. Law 324, et seq.] But plaintiff in error insists that its property is valuable only in case it has the right to collect tolls; and, therefore, *80that such use of its property is, of itself, a property right, and unless there is some way whereby it can enjoy this use of its property after its corporate life has ended, practically it is deprived of its property without due process of law. The argument proceeds upon a false premise. In the eye of the law, the toll road was dedicated by its owner as a public highway. While in one case (People ex rel. v. Newburgh & S. Plank Road Company, 87 N. Y. 1) it was held that if a private corporation owns the fee on which the way exists, the public does not acquire the right to use the way upon the expiration of the charter (which decision has been said to he contrary to the weight of authority— Elliot, Roads & S., 54), yet where the corporation has only an easement, as is the case here, and not the fee, the authorities are unanimous that upon the expiration of the charter the way becomes a public highway. [27 Am. & Eng. Ency. Law, supra, and cases cited.] . . . . The easement in, or the right to pass over, the roadway which the corporation laid out, belongs to the public, subject to the necessity of paying tolls only for such length of time as the corporation exists. The contract between the State and the corporation contained' in the charter, or resulting from the act of incorporation under the general laws, is that the corporation shall possess during its corporate life the power of collecting tolls, which is regarded as a compensation, and a full equivalent, for the cost of construction and operating the road. The corporation accepts the grant subject to this condition, and supposing, at least, that the business will prove remunerative. This right to collect tolls, not belonging to the corporation either as a matter of common right, or for an indefinite time, as a grant from the Legislature, but for such length of time as the corporation itself is permitted to do business, remains the property of the company only *81until the dissolution or the expiration of its charter, and, after that, is neither the property of the corporation nor of its stockholders, but reverts to the State. This property does not, therefore, like the tangible property of a corporation, pass to its stockholders, subject to the rights of creditors, for the obvious reason that the franchise as originally granted was limited to twenty years. It is no answer to this proposition to say that the corporation is deprived of that which is valuable, for the corporation is deprived only of that which, by implication, it agreed to relinquish upon the termination of its corporate existence. If the rule were otherwise the result would be that a toll road company which, under our statute, is limited to twenty years, might indefinitely prolong its existence and perpetuate its franchise, contrary to the express provision of section 11 of article 2 of our Bill of ‍‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌‌​​‌​​‌​​​‌‌​​‌‌​‌​​​​​‌‌‌​​‍Bights, which prohibits the irrevocable grant of franchises by the General Assembly. [See sec. 15, art. 2, Constitution of Missouri]; for just before the termination of its corporate existence, its stockholders could [as was attempted to be done here] form a new corporation, to which the property and franchise of the old one would be transferred, and the business continued, and when this second corporation was about to expire, a third one could, in like manner, be formed, and so on for all time; and thus indirectly the legislative will could be thwarted, and the Constitution with impunity evaded, and the perpetuation of franchises be accomplished, and a monopoly established, contrary to the letter and spirit of our law. The authorities, so far as called to our attention or as we have examined them, are in harmony with this conclusion. In addition to those already cited, they are: Turnpike Co. v. Ills., 96 U. S. 63; State ex rel. v. Lake, 8 Nev. 276; Blood v. *82Woods, 95 Cal. 78, 30 Pac. 129; Thompson on Corporations, sec. 5988; State ex rel. v. Lawrence Bridge Company, 22 Kan. 438.”

The learned counsel for the defendant in this case has with much industry distinguished the facts in the Ralls County Case, 138 Mo. 332, from those in the case at bar, one of which is that in that case the turnpike was constructed originally on a previously established public highway by and with the consent of the county court. But the conclusion reached by this court in that ease was not based upon the exceptional facts therein, but upon the general law applicable in this case, as in' that of any other case in which the turnpike company is incorporated with the right to take tolls for a limited period, and when such charter right expires, the highway becomes disburdened of tolls and is a free public highway thereafter. And by such conclusion, in no manner, as said in the Colorado Casе from which we have quoted so freely, no property right of the company is taken for which it is entitled to compensation. In view of the well-settled law on this subject, it must be held that the contract of the State with the Cape Girardeau and Scott County Macadamized Road Company terminated on February 24, 1908, and the road constructed by it on.that day ceased to be a toll road, but its character as a public highway remained, and the public is now entitled and was on that date entitled to its free use without the payment of tolls. And it follows as a necessary corollary that on May 27, 1903, the said Cape Girardeau and Scott County Macadamized Road Company had no right, title or interest in said public highway other than its toll gates, houses and personal property which it could convey to the present defendant, the Scott County Macadamized Road Company, and nothing passed by the attempted transfer between the said comрanies. It is too well settled to admit of discussion that the *83first company only obtained an easement over the said right of way and not a fee simple title to the land. [Venable v. Railroad, 112 Mo. 103; State ex rel. v. Gravel Road Co., 138 Mo. 345, 346; Kellogg v. Malin, 50 Mo. 499; Chouteau v. Railroad, 122 Mo. 385.] And moreover there was no such corporation as the Cape Girardeau and Scott County Macadamized Road Company in existence at that date capable of making a conveyance of such right of way. [Bradley v. Reppell, 133 Mo. 545.] And for a further reason that before said attempted conveyance was executed, the franchise and roadbed which the deed purported to pass had already vested in the public free from any . power of said defunct corporation to effect a transfer thereof.

Learned counsel in the briefs have assailed the constitutionality of the act of April 3, 1901, but as that act is simply declaratory of the law as had already been decided by this court, we are not imprеssed with any of the objections alleged against its validity.

Much of the brief of the counsel for the defendant is devoted to the evidence for the purpose of showing that Cape Girardeau and Scott counties had no title by prescription to the highway prior to the incorporation of the Cape Girardeau and Scott County Macadamized Road Company, but according to the views already expressed that was a matter of indifference.

The petition in the case is also assailed on several grounds, one is that it does not charge that this particular road belonged to the public, but a reference to the petition will show that it defines this particular road as a public highway, and then alleges that it is now and has been a public highway for more than thirty years, and that the defendant without right or authority maintains on and across said highway at various points designated therein certain bars and ob*84structions commonly known as toll gates and prevents the public from making free and proper use of said highway, and that said obstructions constitute a continuous public nuisance, and' prays that the same be abated and the defendants enjoined from further maintaining the same. This is a clear and concise statement of all the facts necessary to be alleged.

Another objection to the petition is that it fails to charge that the stockholders had ever been reimbursed or that the public or any one else had ever offered to pay them back the money they had invested in the road. A complete answer to this is that there is nothing in the act or in the general law which imposes any such obligation upon the public. In People v. Davidson, 79 Cal. 166, 21 Pac. 538, it was said, quoting from Craig v. People ex rel., 47 Ill. 487: “It is claimed for appellant that before his road can be declared a free public highway, he must be paid an equitable sum for his interest in it. But by his own acts, and presumedly with full knowledge of the law, appellant turned over to the public the use of his land for a road, and vested in the public an irrevocable easement. It is not a case, therefore, where private property is sought to be taken for public use without just compensation. In some of the states, compensation is made to toll-road owners at the expiration of their charters, but in those states it is expressly provided by law that such- compensation shall be made.” No such provision is made by law in, this State. And the theory of our law is that the original incorporators unquestionably estimate that the privilege of collecting tolls for fifty years would fully compensate them for their investment in the construction of the road; whether or not their expectations will be' or have been realized does not concern the State or its officers.

The conclusion of the whole matter is that the judgment of the circuit court in granting a perpetual *85injunction against the obstruction of this highway was proper, and it is affirmed.

Fox, P. J., and Burgess, J. concur.

IN BANC.

PER CURIAM

Upon a rehearing of this cause by the Court ‍‌​‌​‌​​‌​​‌​‌‌‌‌​​​‌‌​​‌​​‌​​​‌‌​​‌‌​‌​​​​​‌‌‌​​‍in Banc, the foregoing opinion of Gantt, G. J., in Division No. 2, is adopted,

Burgess, Valliant, Fox, ■ Lamm, Graves and Woodson, JJconcurring therein.