State ex rel. Keith v. Dayton & Virginia Toll-Road Co.

By the Court, Hawley, C. J.: On the 9th day of February, 1865, the legislature passed an act granting to Frederick Birdsall and his associates a franchise to collect such tolls as the commissioners of Storey and Lyon Counties might fix, for the space of ten years after the passage of said act, upon the road known as the Dayton, Virginia and Carson Toll Road. (Stat. 1864-5, 144.) The road was built prior to the passage of said act over and upon the public land of the United States. Respondent was incorporated January 15, 1874, and is the successor in interest of said Birdsall and his associates. It is claimed by the relator that the franchise, granted by said act, lapsed on the 9th day of February, 1875, and that by [160] the provisions of section seven of “An act to provide for constructing and maintaining'toll-roads and bridges in the State of Nevada, approved March 8, 1865” (Stat. 1864-5, 251), the ownership of said road then vested in the counties where the road is located. Respondent, in order to avoid the plain provisions of the statute, asserts a right under section three of the act of February 9, which provides■ that “the owners of said road may incorporate the same under the general incorporation laws of this State,” and argues that Birdsall and his associates could under this section incorporate, and that by so doing, notwithstanding the provisions .of section one of said act limiting the franchise to ten years, they were given the right to collect toll for fifty years from the time of their incorporation, that being the time specified in the general law for the existence of the corporation. Can this position be sustained by any rule of law or logical course of reasoning?. We think not. In arriving at the intention of the legislature we must look at the whole act, its object, scope and extent, and find out, from the act itself if possible, what the legislature meant, and the statute should be so construed, as to avoid absurd results. The object of the law was to give a franchise to the parties therein named to collect tolls upon a certain road for a fixed period of time. Why was section three inserted in the act? The general law providing for the formation of corporations in existence at the time of the passage of the act in question was limited to “manufacturing, mining, milling, ditching, mechanical, chemical, building and farming purposes.” (Stat. 1864, 49.) It did not authorize an incorporation for the purpose of constructing or maintaining toll-roads. In considering the entire act with reference to the then existing laws it seems to us quite clear that it was the intention of the legislature to give to Birdsall and his associates special authority to create and form a corporation to conduct and carry on the business of collecting tolls, and under their corporate name to possess and enjoy the rights, [161] franchises and immunities of the toll-road mentioned in section one. If it bad been the intention to extend tbe franchise for fifty years more, as claimed by respondent, the legislature would certainly have inserted a proviso to the effect that if the owners of said road did incorporate, then the franchise granted by the first section should be extended for the full time of the existence of said incorporation. In the absence of such a clause it is evident that it was not the intention to extend the time of the franchise beyond the time specified in section one. It does not necessarily follow that because the power was given to incorporate, that the time should be specified for fifty years. It is true that the time of the existence of any incorporation under the general law was not restricted under fifty years, but the existence of the corporation was dependent upon the time specified in the articles of incorporation, and any number of years the incor-porators saw fit to mention not exceeding fifty might be inserted. If the legislature had the power, it was unnecessary to limit the time of the existence of this corporation to ten years, because the first section of the act had already limited the business of collecting tolls to ten years. If Birdsall and his associates incorporated, and if section three has any validity under the Constitution, they could only incorporate to conduct and carry on the business which was authorized by section one. The converse of this proposition would lead to absurd results. But viewed from any legal standpoint of construction, section three is clearly unconstitutional. In our judgment it attempts to give a right to Birdsall and his associates to exercise corporate powers not provided for in the general law. It was an attempt upon the part of the legislature to grant a special privilege to one corporation that could not under the then; existing laws be enjoyed by any other, and is clearly in violation of section one, article eight, of the Constitution, which provides that “the legislature shall pass no special act in any manner relating to corporate powers except for municipal purposes.” Respondent did not incorporate until the general law was [162] changed so as to include any “business or commerce.” (Stat. 1869, 95.) Conceding for argument’s sake that this law authorized an incorporation for the business of collecting tolls and maintaining toll-roads, yet it does not give any right to respondent to collect tolls after the expiration of the franchise granted by the act of February 9, I860. The right to collect tolls was given by said act and is derived entirely from it. No other law then in existence authorized the collection of tolls upon said road and no law has since been passed extending the franchise, and no extension of time has been granted or allowed by the board of county commissioners of Lyon County under section seven of the act of March 8, 1865. Under an almost universal rule of construction, the act under review must be considered and treated as an agreement between Birdsall and his associates and the public, the terms of which are expressed in the statute. If there is any ambiguity in the language used, the act must be construed against the grantees and in favor of the public. The grantees take nothing by implication and can claim nothing but what is clearly given them by the law. (Angell on Highways, Sec. 368; Lake v. Virginia and Truckee R. R. Co., 7 Nev. 299, and authorities there cited.) The fact, claimed by respondent, that the road was private property at the time of the passage of the act, and that no person could travel over it without permission of the owners, does not destroy the statutory contract to dedicate the road to the public in consideration of the privilege of collecting tolls thereon for the period of ten years. By allowing travelers to pass over the road and by collecting tolls thereon they dedicated their road to the public use, and the general public have acquired such an easement to travel over the road as precludes the owners frorg asserting any ownership inconsistent with such use. (Angell on Highways, Sec. 142; Ogle v. P. W. and B. R. R. Co., 3 Houston’s Bel. 272; City of Shreveport v. Walpole, 22 La. Ann. 526; State ex rel. Boardman v. Lake, 8 Nev. 284, and authorities there cited.) [163] Judgment must be entered against respondent, ousting it from the right, privilege and franchise of demanding, collecting or receiving tolls upon that portion of the road mentioned in the act of February 9,1865, which is situate within the county of Lyon, State of Nevada. It is so ordered.