Jenkins v. President, Directors, & Co. of the Union Turnpike Road

Lansing, Chancellor. The first point to be determined, is, *the class to which the act of the legislature, on which this action [93] has been brought, is to be assigned—If a public act, every part of it is, in legal intendment, in the knowledge of the court, as the general law of the kind. If a private act, it can only be so far attended to, as the parties, by their pleadings, have made it an object of judicial connusance. Amongst the English legal maxims, we find, that every statute that concerns the king, and every statute that relates to all the subjects of the realm, are public statutes. All highways, as contradistinguished from private ways, are common to all the people of the state, and concern them generally. A new creation of a highway, or a new modification of an ancient way, as in the case of a turnpike, does not affect the mode of using it generally. It ie still a highway, in the preservation of which, all citizens are interested. It contributes essentially to their convenience. The toll is merely exactable for its construction, maintenance, and repair. In all other respects, the right of using it as a-highway, is unimpaired. The people of the state, who, in their collective capacity, have succeeded to the rights of sovereignty, are also entitled to the reversion, after the sums-charged on the Turnpike arc satisfied. These considerations lather incline me to think, that this statute ought to be considered as a public act; but, for the purpose of this argument, I do not suppose it necessary to be very nice, in discriminating between public and private acts. For, though it is true, that private acts must be specially pleaded, the plaintiffs in the court below, by their allegations, have so far placed the act, on which this action is founded, before the court, as to enable them to examine the statute, to discover whether the ground on which they relied can sustain their action. They have referred to the statute by its title, which is the name or , . . . . . . , , , , , , . . descnption given to it by its makers, and though the plaintiff need not recite more of the statute than is necessary to support his action ; and though it is laid down, that a misreciíal, which does not go to the ground of the action, is helped after verdict by the statute of Jeofails ; yet it is requisite, that he should show that the ground of his action is consonant to the provisions of the statute, to which he has thus generally referred in pleading, and so far forth as it is material to show the ground of his action, he has given it the property of a public statute. This is clearly distinguishable from showing an exception by pleading. In that case the plaintiff only shows [94] his right of recovery generally, and the defendant must, by pleading, bring himself within the exception. In that case, the record will always consist with the statute. In the other, an action may be sustained, which, from a mere comparison of the record with the statute, will show a recovery without right. I mean now to consider, 1. Whether the contract in question is a valid one ? 2djy. Whether an action is sustainable by the defendants for the sums required from the stockholders ? From the record it .appears, that commission■ers were appointed by the statute to perform certain duties, particularly prescribed. They were to receive subscriptions, and to receive, for the benefit of the defendants, $10 on each share of the stock of their Company. The plaintiff subscribed, but it docs not appear that he paid. At the time these steps were taken, the Corporation, described in the act, was not in existence. It was incapable of contracting. The acts to be performed by the commissioners were merely preparatory to its creation. To give effect to their acts, their power must be strictly pursued. They had no discretion, or latitude of action ; their line of conduct was marked with the utmost precision. They were directed to exact from the persons, who were to be admitted members of the Corporation, both subscription and payment, as a condition precedent to their admission. If they omitted either to subscribe, or to pay, they did not come within the terms of admission. If so, the bare act of subscription was wholly nugatory. The subsrcibers, who were to meet, could only constitute -themselves such, within the intent of the statute, by a compliance with the terms prescribed by it. When the Corporation was organized, the Directors might dispense with the exaction of the first payment. But if they ,did so, there was no ground for, extending the doctrine of relation to the transaction, so as to bring it within the rules applying to mutual contracts. For, the doctrine of relation is to be applied, it will carry it to a period beyond the existence of the body politic with whom the contract is supposed to have been made. If the defendants had affirmed the contract, in all the time intermediate the affirmance and the subscription, the contract had been suspended. Now, it is a well established rule, that, to give efto mutual contracts, a unity of time, as to their com.-znencement, so as to bind both parties from the same point [95] of time, is essential. It did not constitute a contract; for, the contract, if any, was, “ I agree to pay {$25 for every share I acquire by this subscription,” and if none tvere acquired, none were to be paidfor. This result would render it unnecessary to examine the second point; but I shall cursorily remayk, that if the subscription was efficient in the first instance, I have no doubt but that the defendants might resort to their action, as a cumulative remedy, and that they had their election either to sue, or exact the forfeiture prescribed by the statute. This is an affirmative statute; it prescribes a form of contract, which, if so entered into as to bind the parties, at the time of consummation, without any aid from the statute by other express provision, would entide the defendants to maintain their action. It is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, doth not take away the common law. Therefore the plaintiff may either have his remedy by the common law, or upon the statute. For the reasons given, I am of opinion, that the judgment in this case ought to be reversed on the first point. L’Hommedieu, Senator. The act establishing this corporation directs, that every subscriber shall, at the time of subscribing, pay unto either of the commissioners the sum of ten dollars, for each share so subscribed. The material question in this case is, whether a subscriber, refusing to pay the money subscribed, is liable to an action for the money subscribed; or, whether forfeiture be not all the punishment. This act, being made for a particular purpose, ought to be strictly pursued ; and as there is no remedy given, except the forfeiture, that forfeiture is the only thing the corporation can insist upon. In this case, the subscriber refused to pay the money the law declared should be paid at the time of subscribing. If this was not done, it was a nudum pactum, or void compact. The plaintiff, by this, forfeited his right to be a stockholder; and, in case the stock had rose, the company would have been under no obligation to have considered him as a stockholder. This is, I believe, the first instance of a suit’s being brought on a subscription to a turnpike or canal corporation, on account of a refusal to pay the subscription money. This shows the general sense of the community, in respect to such subscriptions. Many instances of this kind in the canal company, in [96] surance companies, banking companies, ancbothers, have taken place; and if the doctrine of subscribers’ being liable to pay up the shares in such navigation companies to which they have been subscribed, be once entertained, it would be ruinous to many ; -contrary to the intent and meaning of the parties, and the obvious construction of the law. The determination of this "court will settle the rule in regard to corporations which are formed, or similar ones which maybe created, as to bringing-suits on subscriptions. If the defendants are suffered to recover, it will open a wide door for numberless suits, if the corporations are disposed to bring them. By the contrary rule, no inconvenience will accrue. In this case before us, we have no Tacts to show why the subscriber refused to pay the money sub- >. scribed.by him. But whatever reason he had for his conduct, I am-of opinion he'had a right so to do, by the fair construction of-the act; and that the judgment of the supreme court be reversed. Judgment reversed, the court holding no action would lie.