Fredericks v. Pennsylvania Canal Co.

Chief Justice Mercur delivered the opinion of the court, The second specification of error is to the refusal of the [55] court to charge that the Act of 2d June; 1870, is unconstitutional and void. It is entitled “ An Act to authorize turnpike, plank-road, and canal companies to issue bonds, and secure the same by mortgage, and to abandon portions of their roads and lines for public use.” This contention arises from the abandonment by the defendant of a portion of its line of canal, under this Act. Two questions are presented, the one is whether the Act is constitutional, the other whether the power of abandonment was exercised as provided in the Act. 1. The subject of such abandonment is clearly and specifically expressed in the title. The body of the Act, inter alia, declares “ any such company may, and is hereby authorized to abandon for public use such portions of their roads or lines of improvement as may be deemed by such board unnecessary to be kept open for public use. Provided, however, at least two thirds of the stockholders of such company approve and consent to the same.” The subject and the several parts thereof, specified in the Act, are germane to the subject expressed in the title. The title is not deceptive or misleading. The subject is not disguised nor concealed thereby. It is therefore sufficient: Dewhurst v. City of Allegheny, 14 Norris, 442. As it gives such notice of the subject of the bill as reasonably to lead to an inquiry into the body thereof, that is all which is required: Allegheny County Home’s Appeal, 27 P. F. S., 80. It is true the latter part of the bill somewhat restricts its general operation, but this in no manner affects the right of the defendant to abandon the portion of its canal in question. The power of the legislature to authorize this abandonment with the consent and approval of the company which owned it, is very clear. We cannot review the wisdom of the Act. This legislation is therefore valid. 2. Was the action of the canal company in abandoning a portion of its canal, in substantial accordance with the provisions of the statute? It does not declare that two thirds in number of the stockholders must consent thereto. We think the approval and consent of any number of stockholders who own two thirds of the whole stock of the company is within the meaning and spirit of the Act. If, however, a sufficient number of the stockholders did not affirmatively consent to the abandonment at first, a subsequent approval or consent made valid the action of the others. The stockholders are the only persons who can object to an unwarranted exercise of authority. If they remain silent, after a lapse of time, they will be presumed to have ratified the Act: Eppricht v. Nickerson, 4 Amer. & Eng. Cor. Cases, 388. At a regular meeting of the board of directors held on the [56] 20th October, 1873, after reciting the statute of 2d June, 1870, aforesaid, it was resolved that in the opinion of the board a portion of the canal described, being the same now in contention, was unnecessary to be kept open for public use, and the president of the company was thereby authorized, with the due consent of the number of stockholders specified, to abandon for public use, said portion of the canal. At a meeting of the directors held on the 4th of August, 1874, it was announced that the Pennsylvania Railroad Company, which owned and held more than two thirds of the capital stock of the company had, bjr writing filed in the office thereof, assented to such abandonment. Thereupon the president was instructed to declare the same abandoned, which he accordingly did. At that time the stock of the company consisted of 89,143 shares, of which 69,500 were held by the Pennsylvania Railroad Company,' being more than three fourths of the whole stock. The railroad company unquestionably approved and consented to the abandonment. More than ten years have since elapsed^ yet no stockholder has ever questioned the regularity of the proceedings or the validity of the abandonment. It may safely be presumed that all of them are well satisfied with the action of the directors, and that they have approved and consented thereto. At first we were inclined to doubt whether the reservation, which followed the declaration of abandonment, might not impair the validity of the abandonment itself. A careful examination and consideration of the case have removed that impression. The rights reserved do not appear to be any greater than are necessary for the proper use and enjoyment of that portion of the canal which is not abandoned. If, however, in fact, they should be held to be unnecessarily extensive, such excess will merely be inoperative. It will not make nugatory the action of the company as to that portion of the canal which it actually abandoned. An examination' of the whole record shows the court committed no error in directing the jury to render a verdict for the defendant. Judgment affirmed.