Tripp v. Pontiac & Lapeer Plank Road Co.

Campbell, C. J. Complainant filed a bill in Oakland county to forfeit the chartered privileges of defendant, basing it upon statute 232 of 1875, entitled— [2] “An act to amend sections two, three, and four of ‘An act relative to plank-road companies,’ approved February 12, 1855, being sections 2614, 2615, and 2616 of the Compiled Laws of 1871.” The causes of forfeiture are those mentioned in the act of 1875, differing essentially from previous statutes, and the bill is rested on section 2 of this act, which allows this new remedy to enforce the forfeiture. . Defendant demurs, on the ground that there is no legal authority for filing such a bill. The court below overruled the demurrer, and defendant appeals. The defendant received a special charter in 1848, which declared a general law of 1848 Concerning plank-road companies to form a part of it. That statute does not purport to provide for creating companies; but, inasmuch as it had been decided at that time that general corporation laws were void, and that each corporation must be especially chartered (Green v. Graves, 1 Doug. [Mich.] 351), this law was adopted to save the necessity of repeating the same provisions in numerous charters, by setting out such regulations as might become parts of each charter by adoption. The defendant’s charter expressly adopted it by a section declaring that the provisions of the act of March 13/1848, “shall be and are made a part of this act.” Laws 1848, pp. 59, 371. The charter was made to continue 60 years, and could only be altered or amended after 30 years, unless it was made to appear to the Legislature that the charter had been violated. This general act, made a part of the charter, imposed pecuniary forfeitures for its violation. It also declared very specifically what should be the duties and responsibilities of the company. There has been no attempt by the Legislature to ascertain or declare any forfeiture or change of this charter for its violation. It was held in Flint & Fentonville Plank Road Co. v. Woodhull, 25 Mich. 99, that the Legislature could not act on such a violation until it had been found judicially on a [3] proper legal prosecution. The same principle was declared, concerning amendatory power, in City of Detroit v. Detroit & Howell Plank Road Co., 43 Mich. 140. It is also well settled that there is no inherent jurisdiction in chancery to act upon corporation defaults and violations of charter. Cady v. Centreville Knit Goods Manf’g Co., 48 Mich. 133. It is also worthy of remark that under the general plank-road act of 1851, which was passed when the Legislature had ppwer to impose any conditions it chose on companies formed under it, while power was reserved to alter, amend, or repeal any of its provisions, the same section declared that no company should be affected by such change “ unless especially named in the act so altering or amending this act.” Laws 1851, p. 230.- In 1855, power was given all the chartered companies to use gravel instead of plank. Laws 1855, p. 236. In the same year was passed “An act relative to plank-road com. panies,” which did not in terms refer to chartered companies, and which laid down new duties concerning the method of building and keeping plank-roads in order, and which repealed by its last section two provisions of forfeiture contained in the general law of 1848, making no further reference to that law, and making no reference to any charters. Laws 1855, p. 272. This is the act which was recast in 1875, and is now, in its new shape, relied on to support this proceeding. The only statute which refers to this company by name is an act of February 16, 1857, which confirms it in its corporate rights in the same manner as if it had been organized within the precise time prescribed by its charter. Laws 1857, p. 386. The law of 1875, under which this bill is filed, while purporting to be an amendment of the law of 1855, changes all [4] of its sections by introducing new and very stringent provisions ; and by section 2, reiterated in sections 3 and 4, provides for a suit in equity by tbe prosecuting attorney, on the complaint of a highway commissioner, to have the default judicially declared and ascertained, and the “ forfeiture ascertained and enforced.” Laws 1875, p. 286. Whether any companies existed whose charters embodied the general law of 1848 we are not advised. But the charter of defendant, which was passed when charters were necessary, and which was a contract the State could not violate, was not amendable until after 30 years. The act of 1855 does not purport to be an amendment of the law of 1848, except as it repeals certain conditions of forfeiture. It could not change special charters which had embodied it, unless they were themselves subject to amendment. The law of 1875 does not refer to those sections of 1855 which directly mentioned the law of 1848; but, whether it did so or not, it could not, any more than the act of 1855 could, change any charter not subject to amendment. The chancery clauses all refer to those changes, and are embodied with them. When this act of 1875 was passed, the period of 30 years from the date of defendant’s charter had not expired, and it could not, therefore, affect the defendant. Both it and the law of 1855 probably had operation over many plank roads not protected by chartered privileges. But, however this may be, and aside from the question whether amendments could be made to apply to companies not named (which was expressly guarded against, even under the general law passed since the Constitution of 1850), no amendment made earlier than 1878 could operate on defendant’s charter, whether passed by a two-thirds vote or not. It is not necessary in this case to determine how far the Legislature can deprive a company of its right to a common5 law jury to pass upon forfeitures, inasmuch as the act of 1875 is not applicable to defendant at all. In my opinion the bill should be dismissed. ChaMpliN and Mobse, JJ., concurred.