Blake v. Portsmouth & Concord Railroad

Fowler, J.

In the view we have taken of the present case it is wholly unnecessary to consider or determine the question, so ingeniously discussed by the learned counsel of the parties, as to whether or not the conveyance by the trustees, on the first day of September, 1857, to the Concord and Portsmouth Railroad, of all the corporate rights and powers of the Portsmouth and Concord Railroad, virtually extinguished the defendant corporation, on the well established principles of the common law, as recognized in the decisions of the courts. For, conceding the general correctness of the position assumed by the defendant’s counsel, it would not affect the prosecution of this suit; since, by the positive language of the 23d section of the 146th chapter of the Revised Statutes, it is expressly provided, that “ any corporation whose powers may expire *437 by express limitation,.or otherwise, on any day, may continue to be a body corporate for the space of three years thereafter, for the purpose of prosecuting and defending suits,” &c., “ but not for continuing the business for which such corporation was established,” &e. (Compiled Laws 319.)

Upon the familiar principle, that the word “may,” in a statute, is to be construed “must” or “shall,” where the public interest and rights are concerned, and the public or third persons have a claim de jure that the power should be exercised, this section requires the corporate existence to be continued for three years after it would otherwise he terminated, for certain purposes, among others, that of defending suits. Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 113 , and authorities; Malcolm v. Rogers, 5 Cow. 188 ; Alderman Backwill’s Case, 1 Vern. 152; Rex v. Barlow, 2 Salk. 609; Stampar v. Millar, 3 Atk. 211; Attorney-General v. Lock, 3 Atk. 166; Rex v. Inhabitants of Derby, Skin. 370; 1 Peters 64 .

Besides, the position that the Portsmouth and Concord Railroad, whose charter was originally perpetual, have ceased to exist, has been and can be maintained only uj>on the ground that the act authorizing them to mortgage their franchise, and the act empowering the Concord and Portsmout Railroad to purchase and hold those franchises, with the consequent action in accordance therewith in executing the mortgage, and in making the sale and conveyance, have operated to repeal the charter of the Portsmouth and Concord Railroad. But it is clearly provided by the 26th section of the same 146th chapter of the Revised Statutes, as modified by the 2d section of the 48th chapter of the laws of 1847, that no repeal by the legislature, of the charter of any corporation, “ shall take away or impair any remedy given against such corporation, its members or officers, for any liability which shall have been previously incurred. (Comp. Laws 319.) The plaintiffs in *438 the present suit are pursuing their remedy to enforce the liability of the corporation to pay a debt, incurred previously to the time when it is contended their charter was virtually repealed, and they are,, therefore, entitled to pursue that remedy, even though the charter be expressly or impliedly repealed.

Moreover, it is enacted, by the 26th- section of the first chapter of the Revised Statutes, that “ the repeal of any act shall in up pase affect any act done, or any right accruing, accrued, acquired or established, or any suit or proceeding had or commenced in any civil ease, before the time when said repeal shall take effeet.” (Comp.. Laws 45.) Now, upon the construction for' which the counsel for the defendants contends, the repeal of the charter of the Portsmouth and Concord Railroad did not take effect until the conveyance from the trustees to the Concord and Portsmouth Railroad, September 1, 1857. Yet the-present suit was commenced July 31, 1857, and it was, therefore, a suit or proceeding had and commenced in a civil case before the. repeal of the • defendant’s charter- took effeet, and go, -by the explicit terms of the statute, not to be affected by that repeal.

Prom these various considerations, the motion to dismiss must be denied.

Motion denied.