Attorney General of the State ex rel. Pettee v. Stevens

The ChaNCellor.

This is an information filed by Daniel Pettee and Joshua Smith, in the name of the Attorney General of the state, for the purpose of obtaining an injunction to restrain and prevent the defendants, who profess to act under the authority of the Camden and Amboy Railroad and Transportation company, and also to restrain the said company, from erecting a certain bridge over South river, in the county of Middlesex. It is alleged, that South river is a navigable stream ; the tide ebbing and flowing at the place where the bridge is sought to be erected: that it is, of course, a public highway, and not subject to hindrance or interruption by the said company, or any persons pretending to act under their authority. The mode of proceeding adopted in *376 this case, is founded on the idea, that the erection of a bridge across this navigable stream would be a public nuisance, and that at the instance or information of the proper law officer of the state, this court may interfere to prevent the erection of the nuisance by injunction.

The relief is prayed for on two grounds :

The first is, that the Camden and Amboy Railroad and Transportation company, under whose authority the defendants claim to act, has no legal existence, inasmuch as the terms of the act of incorporation have not been complied with, and consequently that the proceedings of the company are void.

The second is, that no express authority is given by the charter to the company, to construct bridges over navigable streams of water, and that such a power cannot be exercised upon implication merely; and moreover, that if such power be given, the grant, as to that, is unconstitutional and void.

Upon the first point, the material charges in the information are these : that sometime after the passing of the act of incorporation, the commissioners named in the act caused public notice to be given, that books of subscription to the capital stock of the company, would be opened at the house of David Perrine, in Higlitstown, on Tuesday the 30th day of March ; at the house of Griffith Owen, in Mount Holly, on Wednesday the 31st day of March; and at the house of Isaiah Toy, in Camden, on Thursday the 1st day of April: that the books would be opened at ten o’clock each day, and that five dollars on each share subscribed should be paid at the time of subscribing. That the stock was in great demand, and many persons attended at Hightstown for the purpose of subscribing for stock ; but that the commissioners subscribed for the whole of the capital stock themselves, either in their own names or the names of a few of their friends ; and immediately after the said commissioners had thus subscribed, they closed the subscription books, and informed the persons who applied to them for stock in the said company, that the stock was all subscribed and the subscription books closed, and refused to permit them to subscribe. That the next day, many persons attended at Mount Holly, and applied to the commissioners for leave to subscribe, but the commissioners refused ; *377 and particularly one John Black offered to subscribe, and tendered in specie the first instalment upon the shares he asked leave to subscribe for; that the said commissioners refused leave to the said John Black to subscribe for any of the said stock, but offered to sell him stock for an advance upon the par value, which Black refused to give. That notwithstanding the illegal manner in which the said stock was subscribed, the commissioners have undertaken to organize the said company according to the provisions of the said act of incorporation.

All the facts charged have not been fully sustained ; but it sufficiently appears from the answer and depositions filed, that the stock was all subscribed and taken, on the first day, at Hights-town : that while there, no person wrote in the book of subscription but the secretary of the commissioners. It was evidently understood by the commissioners, who were to be permitted to subscribe and receive stock ; for when the secretary had made an end of subscribing for himself, and the other commissioners, and those whose names were given by them or some of them* it turned out that the precise amount was taken, neither a share more nor a share less ; whereupon the books were closed, and no person after that was permitted to subscribe.

It has been held, that where a corporation has been duly organized, and thereby acquired a legal existence, a court of equity will not, upon an alleged nonuser or misuser of its corporate privileges, declare the corporation to be forfeited ; that such power is of right to be exercised by a court of law, and not a court of chancery. And although this doctrine, as laid down in Slee v. Bloom, 5 John. C. R. 366, was subsequently overruled by the court of errors in the state of New-York, yet it has been recognized in at least two several instances in this court, and appears to me to be the safe rule for a court of equity. The information in this case seeks to avoid that principle. It does not bring the company into court and proceed against them as duly incorporated, but it proceeds against certain individuals, and sets up that the Camden and Amboy Railroad and Transportation company, under which those individuals claim to act, has not, and never had legal existence ; that the stock was never subscribed for according to law, and that all subsequent proceedings are void. *378 The object appears to be, to bring before the court the question whether the commissioners, who were appointed in this case by the legislature to receive subscriptions, and to do those preliminary acts which are necessary for the proper organization of the company, acted in compliance with the law and in good faith. As to their power and authority, derived as it was from the legislature, its legality has not been questioned.

It is proper to inquire in this place, how far this court will undertake to look into these matters, thus incidentally brought before them, and decide upon their illegality or irregularity. This information is filed by the Attorney General, for the purpose of restraining certain persons from erecting a bridge over South river, on the ground that it is a public highway, and that the erection of a bridge over it would be a nuisance. These persons are acting under the authority of a corporation, organized under colour of law. The court is asked to infer, from the facts shown, that there is no legal corporation in existence.

I am not satisfied under existing circumstances, and with the facts before me disclosed by the information itself, that it is the province of this court to interfere in the manner desired. It appears by the information, that the shares of the company have been all subscribed in the manner therein stated ; that upon due notice given, the stockholders have appointed their directors ^ that a survey of the proposed road has been made by the company, and that the erection of the road is in progress. Here, then, is a set of men claiming to be a legally incorporated company under the act of the legislature, exercising all the powers and functions of a corporation. They are a corporation de facto, if not de jure. Every thing necessary to constitute them a corporation has been done, colourably at least, if not legally ; and I do not feel at liberty, in this incidental way, to declare all their proceedings void, and treat them as a body having no rights or powers. It has been seen that the court will not do this where a corporation properly organized has plainly forfeited its privileges ; and there is but little difference in principle between the two cases. In both the corporation is actually in existence, but whether legally and rightfully so is the question. And it appears to me, that if the court can take cognizance of the matter in this *379 case, it must in all others where it can be brought up, not only directly but incidentally.

The case of Meads v. Walker, Hopk. R. 587, relied on in support of the information, is very different from the present. An act had been passed by the legislature of New-York, to incorporate the President, Directors and Company of the Commercial Bank of Albany ; and the question was as to the conduct of the commissioners in apportioning the stock among the subscribers. The bill was filed by some persons who had subscribed for stock, but received none; and it teas filed against the commissioners, and before any election was had for directors of the company. The proceedings were in esse and unfinished; the company was not organized, and had no existence either in law or fact. In that case the court granted an injunction to prevent the election of directors, until a more just apportionment should be made of the stock subscribed. A similar case is to be found in 1 John. C. R. 18, impeaching the conduct of the commissioners under the act for the incorporation of the Catskill bank. An injunction was granted on a bill filed before the election of directors.

The persons aggrieved, if there are any such, have made no complaint before this court. They are not here, seeking to have the alleged fraudulent acts of the commissioners set aside, and their own rights declared and protected. If they had presented themselves here at a proper time, or were now here, the question sought to be raised by this proceeding might with some propriety be considered. It is admitted, as contended for on the part of the information, that the commissioners were trustees, and that as such this court, if a proper case were made, might control their acts ; but to authorize it, there should be some complaint on the part of the stockholders, or persons subscribing or seeking to subscribe for stock ; and the proceeding should be by bill, and not by information. This information, although against individuals named, is in effect against the Railroad company, charging them with an illegal exercise, if not an usurpation of power. Under this view of the case, I deem it unnecessary for me to inquire, whether the conduct of the commissioners was regular and lawful, or otherwise, in permitting the subscriptions to be made in the manner they were, and in neglecting to open the books at all *380 the places mentioned in the notiee. The corporation is now or-San^ze^: aV!(l if acting without authority, is liable to be brought at any time before a competent tribunal, in a mode, the legality °f which cannot, as T apprehend, be questioned.

The second ground for relief is, that the company have no express authority given them to erect bridges over navigable streams ; and that if such power be given, the grant of it is unconstitutional and void. In either case, it is contended, an injunction should issue.

If a grant of that kind be unconstitutional and void, it will not be necessary to examine whether it has been made or not. Is it, then, unconstitutional?

South river, at the place where it is contemplated to erect a bridge, is a navigable stream. The tide ebbs and flows, as it is proved, from three and a half to six feet, and the stream is navigated by boats or scows. There is one landing place above the proposed scite of the bridge, and some trade is carried on to that landing. The right to the use of this navigable stream is a right common to all the people of the state. Before the revolution, the right was in the crown. The people are now the sovereign power, and the right is vested in them. It is their property, and as such may be disposed of for the common benefit, in such way as they may see fit. This disposition can only be made by the legislature of the state, which is the rightful representative of the people. And when such disposition is made, “ consistently with the principles of the law of nature, and the constitution of a well ordered society,” it must be considered valid. Such, as I conceive, has ever been the sound construction of the legislative power, and its exercise has been in perfect accordance with it.

The power of the legislature is not omnipotent. It has boundaries beyond which it may not pass. It cannot authorize private property to be taken for public purposes, without providing for a just remuneration. And in regard to many public rights which appertain to the citizens generally, it cannot make such a disposition of them as entirely to divest the citizens of their common property. But it does not follow from this, that the legislature has power to dispose of those common rights, only in cases where by such disposition no possible injury *381 would accrue to any individual. Such a power would be nugatory. There is scarcely a supposable case in which it could be exercised. In every case some inconvenience must accrue to individuals, or some privilege be measurably impaired. Yet if the disposition or regulation be for the common benefit; if the situation of society and the wants of the public require it, individual convenience must yield, and that upon the most obvious principles of the social compact.

The relators are owners of property, and interested in the landing above the scite of the bridge. They have, unquestionably, a common right to the navigation of the stream, and they now navigate it with scows. A bridge placed across the stream below the landing, must necessarily affect the navigation in a greater or less degree, but it would not destroy it. It would occasion some additional trouble and expense, or some additional delay and risk ; but the right, though somewhat impaired, would still remain. Such is the case in all similar instances, where bridges are authorized over navigable streams—such as the Pas-saic, the Hackensack, the Raritan, the Rancocus, and others.

The right of the legislature to make the grant, is beyond dispute. It remains to be considered, whether the power to erect a bridge over this navigable stream is conferred by the charter.

There is certainly no power given, in express terms, to place a bridge over South river, or any other of the navigable streams on the route of the road.

The eleventh section of the act, invests the company with full power to survey, lay out and construct, a railroad or roads, with all necessary appendages, from the Delaware river, at some point or points between Cooper’s creek and Newton creek, in the county of Gloucester, to a similar point or points upon the Raritan bay. And it enacts, that when the route and location of such road shall be determined upon, and a survey of such route and location deposited in the office of the secretary of state, then it shall be lawful for the company to enter upon, to take possession of, hold, use, occupy and excavate, any such lands, and to erect embankments, bridges, and all other works necessary to lay rails thereon, and to do all other things which shall be suitable and necessary for the effectual completion of the said road or *382 roads, and to carry into full effect the objects of their incorporation.

This section gives the power to erect bridges generally, where they may be necessary. It makes no distinction between bridges over navigable streams, and streams not navigable; and unless it can be clearly shown that the grant of a power to erect a bridge over a navigable stream, is to be in some certain and specific form, I should incline to think it given by this section. Tt was argued, and with great force, at the bar, that this general authority, as it was termed, to erect bridges, did not include the power to place a bridge over a navigable stream or public highway; and the case of the Commonwealth v. Coombs, 2 Mass. Rep. 489 , was relied on in support of the doctrine. The law of that case is sound, but it has no application to the one now before the court. A certiorari had been sued out, to remove a record of the court of sessions, respecting the laying out of an highway. C. J. Parsons, in delivering the opinion of the court, says, “ The statute gives a general authority to the sessions to lay out highways, but the statute must have a reasonable construction. The authority, therefore, cannot be extended to the laying out of an highway over a navigable river, whether the water be fresh or salt, so that the river may be obstructed by a bridge. A navigable river is of common right a public highway; and a general authority to lay out a new highway, must not be so extended as to give a power to obstruct an open highway already in the use of the public.” The same doctrine is applicable to our surveyors of highways or chosen freeholders. They are vested with a general authority by the statute, to lay out and cause to be opened public highways ; but this general power is to be construed reasonably, and with reference to the rights of others. Hence it has always been considered necessary, when a bridge was necessary over a navigable stream, to procure a special act of the legislature. But the power given to the company in this case, is very different from that vested in the surveyors of the highways under the general road act. It is a special power, for certain and specified purposes; not a general authority growing out of a public statute, and to be exercised or not, as occasion may require. There is not, it is true, any specific grant of power to construct this particular bridge; *383 but there is a special authority to erect bridges and all other works necessary for the completion of this particular road. If this were . r 1 not so; if the privilege of erecting bridges over the navigable streams on the route, depended on some subsequent grant of the legislature, the operations of the company would be liable to be arrested at any moment, and the franchise would, of course, be incomplete and comparatively useless.

Again ; the power appears to flow legitimately and conclusively out of the very nature of the grant. The road is to commence below the mouth of Cooper’s creek, and between it and Newton creek, and terminate upon the Raritan bay. In taking this route, it is necessary to cross several navigable streams. Cooper’s creek cannot possibly be avoided, without great and unreasonable circuity. The same is true in regard to Pennshawkin, Cross-wicks, and Rancocus ; and this being the case, and at the same time a matter of notoriety, can it be supposed that the legislature intended to say to the company, you may build your railroad from place to place, at a great expense, but you shall not be permitted to connect the different parts of it by necessary bridges over the navigable streams, without further power from us, to be granted at some future day, at our pleasure? Is it not more reasonable to conclude, that when the legislature gave the authority to erect such bridges and other works as might be necessary for the completion of their road, they intended to convey the right of constructing all bridges on the route of their road, as well those that crossed navigable streams as those that did not ? Nay, is not such conclusion necessary for the safety of the company ?

The rule, as contended for at the bar, that there ought to be express words to take away vested privileges, is too narrow. In the case referred to, Coolidge v. Williams, 4 Mass. R. 145 , C. J. Parsons gives the true principle : “ Private statutes, made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights and privileges of others, unless such construction results from express words, or from necessary implicationIn that case, he said, a reasonable effect could be given to every part of the statute without such construction. In this, I do not see how it is possi *384 ble to give a reasonable effect to the charter, without giving the power contended for. Any other would leave the company at the mercy of future legislatures, and in a situation of great uncertainty.

The result is, that this power to construct bridges over all the streams on the route, so as best to carry into effect the object of the corporation, is given by the act; if not in express terms, yet by necessary implication; and that the grant thus made is constitutional.

The power must, nevertheless, be exercised discreetly, and with a due regard to the privileges of others. If an injurious and wanton exercise of it be shown to the court, it will interfere and regulate it upon proper principles. To warrant such interference, the exercise of power must be shown to be not only injurious, but wilfully or wantonly so. A mere mistake in judgment will not be sufficient: Haight and al. v. Day and al., 1 John. C. 18. That must be remedied at law. In this case I do not find any thing like a wanton exercise of power. The company propose to build a bridge over South river, on what the engineer states to be the nearest and best route. Below the spot where the bridge is to be built, there is already a permanent bridge over the same stream, authorized by an act of the legislature. This was originally a draw-bridge, but such was the trifling amount of the commerce carried on through and above the bridge, that the legislature a few years since was induced, for the greater convenience of the public, to authorize the bridge to be made permanent. Such being the case, it can scarcely be considered an unjustifiable act in the company to erect their bridge at the place selected, unless in so doing they entirely and knowingly cut off the trade of the relators, and make sacrifice of all their interests in that behalf; which is not pretended. It appears that they intend to leave a safe and convenient passage for scows, which is the only kind of boat that navigates that part of the stream ; and if they should not, the parties injured will have a complete and summary remedy.

Another question has been made, which is proper to be considered. The act says, that when the route or routes and location of such road or roads shall have been determined upon, and a survey of such routes and location deposited in the office of the *385 secretary of state, then it shall be lawful for the company to enter upon and take possession of lands, (fee. And it is insisted that no such survey has been filed, pursuant to the act; that the filing of the survey is a condition precedent, without which the proceedings of the company are void. On the other side it is insisted that a proper survey has been regularly filed in the office.

Two small books have been produced before the court. They contain, it is alleged, the courses and distances of the proposed railroad, from Camden to Amboy. They give the commencement of the road ; the different stations made at the time of the survey; the course and distance between each station, and the number of stations to the termination of the road. This is supposed b}T some to be a survey, and by others to be none. If a survey necessarily, ex vi termini, means a map or profile of the route, then this is no survey in that sense of the term. But I am not satisfied that this is the case. They are sometimes used as convertible terms, but not always. In the act of 1719, for settling the boundary between East and West Jersey, a plain distinction is made between books of surveys, and maps or draughts of land. And generally, when the term survey is used in relation to the location of proprietary rights, it is understood to mean a description, in words or figures, of the lands located. Such are all the surveys, as recorded in the surveyor general’s office, and the meaning of the term is there perfectly understood. By our road act, the surveyors laying out a public highway, are to make a return of the road, with a map or draught of the same, with the courses and distances. The term survey is not mentioned.

Upon the whole, I take the description returned and filed in the office, to be a survey within the meaning of the act; at all events so far forth as to warrant the court in refusing an injunction against the company, on the ground that no survey whatever has been filed. If a mistake has been made by the company, acting without fraud or corrupt intention, but seeking to comply with the requisitions of the law, it does not present a proper case for the interference of this court, by the extraordinary remedy of injunction.

The injunction is refused, with costs.