State v. Fourth N. H. Turnpike

Gilchrist, J. The charter makes it the duty of the corporation to lay before the legislature, at the end of every six years after the setting up of any toll-gate, an account of the expendí [166] tures and profits of the road, under the penalty of forfeiting the privileges of the act in future. These accounts, however, were not submitted until the years 1830, 1836 and 1842, in which years they were submitted to the legislature, and accepted by them as sufficient and satisfactory. In the year 1833 the legislature passed an act authorizing the corporation to change the route of their road in certain places. These are the facts laid before us, upon which we are to determine whether the defendants are now, an existing corporation. The accounts not having been laid before the legislature, the penalty of forfeiture was incurred in terms. But the subsequent accounts were accepted by the legislature as sufficient and satisfactory, and farther powers were conferred upon the defendants by the act of 1833. Has the legislature power to waive the forfeiture ? And if it has, do these facts amount to such waiver ? These are the questions presented to us by the pleadings. The doctrine of the waiver of a forfeiture by the legislature by subsequent legislative acts does not apply, if, by the terms of the charter, the franchise absolutely determines on failure to perform the condition; for as in such case the corporation has ceased to exist, the doctrine of waiver is inapplicable. The charter in this case provides that the accounts shall be laid before the legislature, “ under forfeiture of the privileges of the act in future.” The meaning of this is, that the forfeiture shall be proved in the regular, legal manner ; upon the institution and prosecution of proceedings in the established course, such neglect of this duty shall be cause of forfeiture. It probably would not be competent for a debtor of the corporation, when sued, to set up by way of defence that the charter of the corporation was forfeited, unless the forfeiture had been established by the judgment of this court. Chester Glass Co. vs. Dewey, 16 Mass. 102; Bank of Niagara vs. Johnson, 8 Wend. 645; The People vs. The Manhattan Co., 9 Wend. 382. That is a matter to be judicially tried and determined, and not to be inquired into collaterally. Where a charter imposes the duty of malting stated I returns of the expenditures and profits, the government alone can enforce a forfeiture for a neglect of the duty. Peirce vs. [167] Somersworth, 10 N. H. Rep. 369; The State vs. Carr, 5 N. H. Rep. 367. In the case of the Bear Camp River Co. vs. Woodman, 2 Greenl. 404, the charter was to become void, if, at the end of one year, the river should not be cleared of certain obstructions. In an action of assumpsit to recover tolls of the defendant, he offered to prove that the removal of the obstructions had never been effected ; but the evidence was rejected at the trial, and the ruling was held to be correct. This case affords a strong illustration of the necessity of specific judicial proceedings for the purpose of causing the charter to bo declared ^ forfeited. And in the case before us, we think that by the omisT- ' sion to lay the accounts before the legislature, the corporation did not, ipso facto, cease to exist, but proceedings must have s been instituted, to establish the fact that the penalty of forfeiture was incurred. Rex vs. Pasmore, 3 T. R. 244. A quo warranto is necessary where there is a body corporate de facto, who take upon themselves to act as a body corporate, but, from some defect in their constitution, cannot legally exercise the powers they affect to use. Ashhurst, J. Chancellor Kent says that he believes there is no instance of calling in question the right of a corporation, as a body, for the purpose of declaring its franchises forfeited and lost, but at the instance and on behalf of the government. Slee vs. Boom, 5 Johns. Ch. 381. In The People vs. The Manhattan Co., 9 Wend. 382, Mr. Justice Sutherland, says, “ whore the corporation expires by lapse of time, it may be otherwise, and in such case only.” A corporation may forfeit its franchises for misfeasance or nonfeasance, but the information for that purpose must be presented under the authority of the State, which must be a party to the suit and a party to the judgment for the seizure of the franchise. The Commonwealth vs. Union Ins. Co., 5 Mass. 230; Rex vs. Amery, 2. T. R. 515; Vernon Society vs. Hills, 6 Cowen 23. The corporation, then, being in existence in the year 1830, did the reception of the accounts and the passage of the act of 1833 constitute a waiver of the preexisting ground of forfeiture, so that it cannot now be insisted on ? It is said expressly, by Parsons, C. J., in The Commonwealth vs. Union Ins. Co., 5 Mass, [168] 232, that the commonwealth-may waive any breaches of any condition, expressed or implied, on which the corporation was created. The surrender of a charter can be made only by some solemn, | formal act of the corporation, and will be of no avail until ac-I cepted by the government. There must be the same agreement ! of the parties to dissolve that there was to form the compact. ‘Morton, J., Boston Glass Man. vs. Langdon, 24 Pick. 53. If acts of the legislature recognize the subsequent and continued existence of the corporation, such recognition will be a waiver of a forfeiture. The People vs. The Manhattan Co. In the case of The People vs. The Kingstown Turnpike Co., 23 Wend. 193, it was held, that an act extending the time for the completion of the road was not a waiver of breaches of conditions ; for such was not expressly declared to be the intent of the legislature, nor was the intent necessarily to be implied from the act. From this position Mr. Justice Gowen dissented, and held that a statute expressly giving time to complete the road was equivalent to a renewal or confirmation of the original charter. In the present case, the legislature did not expressly declare- - that they recognized the corporation as in existence, or confirmed its privileges, but we think no other construction can be given to-their proceedings. It is a reasonable doctrine, that a breach of condition may be waived. It is an important element in the law relating to landlord and tenant. In Goodright vs. Davids, Cowp. 803, Lord Mansfield observed that forfeitures are not favored in law, and where the forfeiture is once waived the court will not assist it. Coon vs. Brickett, 2 N. H. Rep. 163; Doe vs. Pritchard, 5 B. & Ad. 765. There is as much reason for considering the acts of a legislative body as a waiver of a forfeiture, as there is for giving that effect to the act of a landlord. The State can claim no exemption from the ordinary rules which govern contracts, and there is not to be one law for them and another for private persons. The legislature accepted the accounts laid before them in 1830, and the subsequent years, as sufficient and satisfactory; that is, they were satisfied with the accounts as a sufficient compliance with the charter. The act of 1833 is an equally clear waiver of a forfeiture. Notwithstanding what had occurred, they [169] authorized the corporation to alter the route of their road. Tbe act is susceptible of no other construction in this regard, than that the legislature intended to waive any forfeiture consequent on the prior omissions of the corporation. If they had intended to insist on any forfeiture, the act certainly would not have been made. The act was intended to be beneficial to the corporation. But it would not have been so unless they retained the other corporate powers necessary to enable them to carry into effect the purposes of the act. We are, therefore, of opinion that the rejoinder is a sufficient auswer to the replication, and that upon the demurrer there must be Judgment for the defendants.