2 Mont. 96 | Mont. | 1874
This is an action brought by tbe district attorney of tbe first district, upon information in tbe nature of a quo wa/>'-romto, on behalf of tbe people of tbe Territory, against tbe defendant, to compel tbe defendant to show by what authority it claims to exercise, tbe privileges and franchises of a corporation, and for judgment of forfeiture and buster. There was a demurrer to tbe information or complaint, which was sustained in part and in part overruled, to which rulings of tbe court no exceptions were taken; tbe plaintiff not amending the pleading but abiding tbe same, and tbe defendant was ruled to answer. An issue was formed, trial bad, verdict and judgment for plaintiff and appeal to this court.
Tbe appellant now attacks tbe information or complaint for tbe reason that it does not state a cause of action; and no exceptions having been taken to tbe rulings of tbe court below upon tbe demurrer, and no question saved as to tbe sufficiency of tbe complaint, tbe inquiry is presented, whether or not tbe question can be raised in this court for tbe first time. No exceptions having been saved to tbe decision upon tbe demurrer, tbe complaint stands here precisely the same as if no demurrer bad been filed; and we are called upon to determine whether this court can in-qmre as to tbe sufficiency of tbe complaint, tbe question not having been raised in tbe court below.
It is well settled that tbe averments of a pleading and tbe proofs must correspond, and it therefore follows that perfect proof cannot aid an imperfect averment, and a perfect averment is unavailing if supported by imperfect proof. If, in order to lay tbe foundation for recovery, tbe proof must go beyond tbe complaint, then tbe complaint is defective, and will not support tbe judgment. A judgment is tbe final determination of tbe rights of tbe
The complaint substantially avers that the defendant, for the period of more than three years prior to the commencement of this action, had used, and still does use, the following liberties, privileges and franchises, to wit: That of being a body politic and corporate, by the name and style of- the Virginia City and Summit City Wagon Boad Company, and by such name to be capable of making contracts; to sue and be sued; to implead and be impleaded in courts of law and equity in this Territory; to have and use a common seal; to erect a toll-house and toll-gate on said road*; to employ a toll-keeper to demand and receive tolls from all persons, wagons, horses, etc., passing over the same; to purchase and hold real and personal property, and sell and convey the same, and claims the franchise to maintain said road for the term of twelve years from and after January 27,1865, and to collect toll on the same; that all said privileges, liberties and franchises the defendant, during all the time aforesaid, has usurped,
The answer is a specific denial of the allegations of the complaint, except it admits that the defendant claims to use and enjoy said privileges, franchises and liberties under and by virtue of the act of the legislative assembly mentioned in the complaint, and denies that the same is without warrant, grant or charter.
It is contended upon behalf of the appellant that this is a civil action, and made so by the Practice Act; that the common-law remedy, by information in the nature of quo wa/rrcmto, is by said act abolished, and that the complaint should contain all the aver-ments necessary to constitute a good complaint in a civil action under the Code. It is also contended that this complaint is fatally deficient, because it does not aver that appellant is a corporation; that its allegations are based upon the hypothesis that defendant is not a body politic and corporate, and that it raises only the question of its existence as a corporation; that the claim of the defendant to exercise the rights, privileges and franchises pertaining to the road by the direct terms of the complaint, are without warrant, grant or charter, and that, having none of the attributes of a corporation, at the date of bringing this suit, yet it is charged with various acts of usurpation, omission, and commission in its corporate capacity. And it is further contended
In order to solve the" questions sm-rounding this case, it will be first necessary to ascertain what effect the adoption of the Civil Practice Act of this Territory had upon the common-law remedy for usurpations of public offices and franchises. The ancient mode of proceeding was by writ of quo wa/rra/nto, and this old writ is the foundation of the more modern proceeding by information in the nature of quo wa/rra/nto. During the reign of Queen Anne, a statute was passed upon the subject of informa-tions, in the nature of quo warranto, in cases of usurpations or intrusions into public offices or franchises, and this statute' forms the basis of the remedy in England and the United States at the present day in cases of this character, except where the proceedings have been established, modified or changed by statute.
Did the adoption of our Civil Practice Act by the legislative assembly of this Territory abrogate or abolish the common-law remedy upon this subject? The appellant contends for the affirmative of this proposition, and also that the Practice Act established a civil action- for all cases of this kind, and that the complaint in this case, when tested as a complaint in a civil action under the Code, is defective, and hence that the judgment below should be reversed.
The Practice Act, in force at the commencement of this action, provides, section 1: That “ there shall be, in this Territory, but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs.” It also provides, section 310: “ An action may be brought by the district attorney, in the name of the people of this Territory, upon his own information, or upon the complaint of a private
Our law being but tbe common-law remedy reduced to tbe form of a statute, let us examine tbe question as to bow and wherein our Civil Practice Act has affected tbe pleadings and mode of proceedings in this action. Informations in tbe nature of quo wa/rranto are always of a public character, wherein the people, tbe State or tbe Commonwealth are interested, and this form of action and proceeding can never be resorted to to redress a private wrong or for tbe enforcement of a private right. Arid if tbe action which tbe district attorney, by virtue of section 310, is authorized to bring on behalf of tbe people is a civil action, it is made so by virtue of tbe first section of tbe act, but this first section only provides a civil action for tbe enforcement and protection of private rights and redress for primate wrongs ; and if informations in tbe nature of quo warrcmto do not and cannot, in any manner, affect pri/oate rights and wrongs, then this section of the Practice Act has no control whatever over this action or proceeding.
Section 310 provides that the district attorney may bring an action npt for any private individual, or for a private purpose, but in the name of the people, against any person who usurps, intrudes into or unlawfully holds any public office or franchise within his district. And the action is authorized in the name of the people simply because the usurpation or intrusion is a public matter in which all the people are interested, and because the people are the real party in interest, and section 316 provides that if the defendant is found guilty of such usurpation or intrusion, he may be fined in any sum not exceeding $5,000, which fine shall be paid into the Territorial treasury; so the action is in the nature of a criminal one, brought by the people for a violation of their rights and privileges, and the punishment is forfeiture and
"We, therefore, hold that section 1 of the Practice Act, wherein is provided a civil action for the enforcement of private rights, and the redress of private wrongs, cannot apply to informations in the nature of quo warranto, which are purely of a public character, and which are resorted to to redress public wrongs, and to enforce public rights, with any better propriety than it could apply to proceedings upon indictments wherein the people seek to punish offenders against the criminal laws.
And even if our statute, upon the subject of usurpations and intrusions into public offices and franchises, was not a re-enactment of the common law upon the same subject, and if the statute did provide a new remedy, and a new form of proceeding, which it does not, still the statute does not pretend to abolish the common-law remedy, and, therefore, leaves it in full force, and, if we have two remedies, we may test and try the sufficiency of this complaint by either, and if the information or complaint in this action is good at common law, it is sufficient for all the purposes of this case, and, as we hold that the first section of the Practice Act does not apply to this form of action, we must measure the information herein'by the rules and principles of the common law.
In proceedings upon information in the nature of quo war-ranto, the rule of pleading is thus laid down in Thompson v. The People, 23 Wend. 571: “Where the inf ormation questions a present right of any defendants to have or use any corporate rights or franchises, those defendants must in their plea set out the matter specially as it forms their defense, and upon that plea the attorney-general takes issue (unless he chooses to allege by way of replication some new matter), and is not required to specify the charges upon which he relies as matters of forfeiture. All such new matter alleged in the replication, or otherwise by the attorney-general, is in fact a new information, and must be pleaded to by the defendants until an issue is formed.” And this course of pleading was pursued in the celebrated quo wa/rrcmto case of The City of London, 8 Howell’s State Trials, 1050, and has been followed as a form since that time. In that case the attor
In a note by the learned reporter, to the case of People v. Richardson, 4 Cow. 106, a form for an information is given, which strictly follows the precedent of the case against the City of London, and it is there stated that this is the form, whether the information be brought for an usurpation without any original title, or for a subsequent forfeiture when the original title is not disputed. '
In the case of People v. Kingstown & M. T. R. Co., 23 Wend. 194, the action was an information in the nature of a quo war-ranto. The information charged the defendant with usurping the liberties, privileges and franchises of being a body politic and corporate by the name of the Kingstown & Middletown Turnpike Road Company, and by that name to construct and maintain a turnpike road within certain bounds, specifying the same, and to" erect and maintain gates upon such road, and to levy and collect tolls from all persons using the same; all which liberties and privileges were charged to have been usurped. To this information the defendants pleaded the act of the legislature whereby they were erected a body corporate, and were authorized to construct the turnpike road, etc., described in the information, and the correctness of this information was not called in question.
In the case of People v. Bank of Niagara, 6 Cow. 196, the information is set out in full in the report of the ease, and substantially charges that the President, Directors and Company of the Bank of Niagara, at Buffalo, in the county of Erie, for the space of six months now last past and upward, have, and still do use without any warrant, grant or charter, the following liberties and franchises, to wit: That of being a body politic and corporate in law, fact and name, by the name of the President, Directors and
In tbe case of The People v. Bristol & R. T. R. Co., 23 Wend. 223, is also a case in point. In that case tbe attorney-general filed an information, charging that tbe Directors and Company of tbe Bristol and Bensselaerville Turnpike Boad claimed, and for five years then last past bad claimed, to be a body politic and corporate, by tbe name of tbe Directors and Company of tbe Bristol and Bensselaerville Turnpike Boad, and by that name to levy and collect tolls, etc., all which privileges and franebises be charged to have been usurped. To this information there was a plea and replication. Tbe sufficiency and form of tbe information was not doubted to be correct.
Of like character is tbe case of People v. Hillsdale & C. T. R., 23 Wend. 254; to tbe same effect is tbe case of Thompson v. People, id. 537. See, also, People v. Utica Ins. Co., 15 Johns. 362; Commonwealth v. Tenth M. T. Co., 5 Cush. 509; Ang. & Ames on Corp., §§ 756, 776.
It will be observed that in all the foregoing cases against corporations, tbe informations charge tbe defendant with usurping them corporate rights and franebises, and tbe objections of tbe appellant in tbe case at bar would apply with equal force to tbe cases herein referred to, for in all these cases tbe defendant is charged with usurping to be a corporation, and, at tbe same time, a judgment of forfeiture is asked for against tbe corporation.
The information in the case at bar follows the forms that have been approved over and over again by the highest authority, except in this, that the district attorney has embodied and engrafted into his information the specific matters upon which he relies for forfeiture, making direct specific charges in addition to the general charge, instead of setting up the same in his replication; and the only effect of this mode of specifying the charges is to form an issue upon the information and plea instead of the plea and replication, and possibly to change the burden of proof in the trial of the cause, neither of which effects would vitiate the pleading.
We wish now to test this information, looking upon it as a complaint in a civil action under the requirements of the Practice Act.
A cause of action must be fully set forth in the complaint, for the reason that the proof cannot go beyond the averments. It is claimed that the complaint in this case is fatally defective in this, that there is no averment that the defendant is a corporation, and hence that its corporate character could not be proved, and that the absence of this proof would leave no case in court. The aver-ments of the complaint are to this effect: That defendant claims to enjoy and use said privileges, franchises and liberties under and by virtue of an act of the legislative assembly of said Territory, entitled “ An act to incorporate the Virginia City and Summit
A reference to the statutes will show that the act of the assembly referred-to in the complaint is an act “to incorporate the Virginia City and Summit City Wagon Koad Company,” and this is the company against whom this suit is brought, and the act referred to in the complaint shows the company to be an incorporation.
Section 61 of the Practice Act of 1867, which was in force when this action was brought, provides, that in pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute hy its title, and the day of its passage, and the court shall thereupon take judicial notice thereof. Therefore it is that the reference to the act incorporating this road company, this defendant, must have the same ' force and effect as if copied into and made a part of the complaint; and, looking at the act as a part of the complaint, as we have the right, and as it is our duty to do, we shall find that the defendant is a corporation, and the act of incorporation being, in effect, a part of the complaint, an additional averment that the defendant is a corporation, would be surplusage, and wholly immaterial.
Therefore, looking at the complaint with the statute referred to as a part thereof, we think it sufficiently appears, and is affirmatively averred, that the defendant is a corporation, and this the defendant admits. And if there was no admission, the act incorporating the company, the defendant, is so pleaded that it could be proved by the introduction of the act in evidence, and any allegation in a complaint, sufficient to authorize proof under
The 8th section of the act incorporating the defendant, provides that, on complaint before a justice of the peace of the township, that said road is out of repair, the defendant shall be summoned to appear before such justice; and if on the trial it shall be found that the road is out of repair, and unsafe for travel, it shall be the duty of the justice to impose a fine of not less than S10 nor more than $25, and’ in addition thereto, to issue his order that no tolls shall be collected upon said road until it is put in good repair.
By, virtue of this section it is insisted, upon the part of the appellant, that the remedy by information in the nature of a quo warranto to forfeit the charter is prohibited; that the remedy provided by the act of incorporation abolishes all other remedies, and that the action authorized to be brought before a justice of the peace excludes all other proceedings to forfeit the franchise. In other words, it is contended that the eighth section of the act incorporating this defendant, whereby the right is given to any person to make complaint before a justice of the peace, if the road is out of repair, at once abolishes the common-law remedy by quo warra/nto, and abrogates and annuls the 310th section of the Code providing remedies for usurpations of franchises, and forever prohibits the people from bringing an action to forfeit the charter of the company, no matter how flagrant their acts of usurpation or misuser may be; so that, if the claim of the appellant is upheld, this defendant is a perpetual, everlasting corporation, with a charmed life, and entirely beyond the reach of the people or the State, until it expires by the limitation of the act that created it.
If this condition of things was intended by the legislature ; if it intended to abolish the common-law remedy, and the 310th section of the Practice Act, it should have made known its intention by the use of positive and unmistakable language, but as it said nothing upon the subject in the act incorporating the defendant, we cannot presume any such intention.
• The eighth section simply provides for a private action at the suit of an individual, and does not pretend to interfere with the
And the same authority lays it down as a rule of almost universal application, that if a statute fixing a penalty for an offense do not either expressly or by necessary implication cut off the common-law punishment, or prosecution for the same offense, it shall be taken to intend merely a cumulative remedy. And with stronger reason does- this rule apply when there is a general statutory remedy upon the same subject, which the particular statute or act does not attempt to modify or repeal.
We, therefore, hold that the eighth section of the act incorporating the defendant does not abolish, repeal of modify the common-law and statutory remedy for usurpation, intrusions into or unlawfully holding an office or franchise.
It is further argued, upon behalf of the appellant, that if the nonfeasance is not continued up to the commencement of the proceeding, or has ceased before the suit is brought, or is not an existing danger to the community, it is not a good cause for forfeiture. That is to say, there may have been divers and long-continued acts of forfeiture, the road may have been so out of repair for long periods of time, as to subject the corporation to a forfeiture of its charter, yet if, by the operation of natural causes or the acts of the company, the road happens to be in good repair, at the date of bringing the action against the corporation, this shall operate as a sort of condonation for the acts of forfeiture, as if a person offends against the law and afterward behaves himself, therefore he shall not be punished for the offense. This does iiot seem to be a very sound proposition.
Grants confirming franchises, rights and privileges are contracts between the sovereign power and private citizens upon certain implied or expressed conditions. A performance of these
The condition precedent to the contract between this defendant and the people of the Territory was, that the defendant should construct and keep in repair the Virginia City and Summit City Wagon Road. This condition should be substantially complied with, and a failure to comply in a material particular would subject the franchise to forfeiture. Whether or not there was a performance, and compliance with these conditions, was the question tried to the jury, and as there is evidence to support the verdict, it cannot be disturbed here, and the judgment below is affirmed with costs.
Judgment affirmed.