1l.he Coln ltlonveifalh ex tel. Jaliles Todd, Quo Warraxito. Vs. Brief for'Dellndantll -The.Hlleghteny Bridge Co'y. nl tlhis case the Jurv imulidI t. Thelfat the defendants did, by Special resolution, prohibit Jamles Tod, the relator, and his family, from;rossing and re-crossing said bridge at the yearly rates prescribed by the bye-laws of the corporation. 2d. That the defendants did not, every third year, make such returns -as it was required to mnake. 3d. That the profits and income, after the decetnneal jp`roc1, did beat r a dividend of more thran 15 per cent., or:i,')ttlcd lcae 7orie suc.Zich dJi'idut(ec if lthe rates of toll allowecd by the clarter had not beei rlediced. 4. That the defendants did vest the excess of clear profits over 15 per cent. in bank stock and other productive funds. 5. That the tolls over and above what defendants WVere authorized to receive and retain for the stockholders (antd Avhicli. might hrave been received) would not at a, faii? applrilselellt have been sufficient to pay for land redeemthe bridge, and pay the stockholders the appraised value of profits fo)r the residue of the term of forty years. 6th. That the defendants did not appropriate the -tolls to the payment of the individual indebtedness of the stockholderso 7. That some of violattions set forth in the suggestion, -'were committecl within thirty years before the fIilng of the suggestion. The quessio1n now arises upon the whole record, what judg'ment is the court' authorized to pronounee? The recordc presents three demurrers by the plaintiff, and a -verdict upon seven poiltnts. The first demu-rrer is ui'non the ground that the com-?pany had no, right to-: prescribe anvy rate of trip, toll othe.r than the rates specified. in the act. To: this, it is answered that the statute preseribed only a maximuml rate, beyond whisch they could not lawfully exact. But it was ineident to the general powers of the corporation to stipulate in good faith with ith parties for a; dififerent rate.. The second dem-arrer is to the plea setting forth the contract with General Robinson as to the use of his ground. on which the abutments AwNere erected. It is submitted ~that in this respect it wtas perfectly competent to the corporation to m1ake such contract as might in the jufdgment of the directors be most advantageous to the carporation7 and that the consideration received was a full equivalent for the privilege granted, being alleged in the plea and admitted by the demurrer, constitutes a full defence to that charge. The thirdl demurrler is to the plea stating the reasons for contracting a debt of 15,000 for the completion of the bridge. To contract debts within the scope, and for the objects of its being, is incident to every corporation. In this instance the right to increase the capital stc.ek was a pri' vileoge con'ferred-not the denial of a general riglit. Fror-tri the peculiar circumstances of the country, as explained by Mr. Anderson, and averred in tie plea'that privilege was not available, and but f'or the exercise of its general rilght, the bridge, as appears, could not have been erected. By corltractingthat delbt the design of the State hi creating the corporation, was fulfilled; the benefit of a valuable public work secured, while the company violated no duty and exceeded no powers by the charter granted. Upon the demurerrs, then, the law is with the defen-,~lant. But were it otherwise, no ground of forfeiture remiainls unanswered; and the facts fbuncl by the jury establish a full and complete defence to every charge in the:suogoestion worthy of any consideration. Regarding the finding of the Jury onltihe first,the.e issues, submitted to their consideration, as suppoited and sustained by legal evidence,'we deny.that it justifies a forfeiture of charter or seizure of franchises. The injury, if any, to the relator, charged in the first issue, is strictly private. No public right or interest is affected; no liability to forfeiture is incurred; no infraction-~i:f the chiarter is caused by:the act charged. The case of The People vs. the Hillsdale and Chathamn Turnpike Company, 2 Johnson's Reports, 190, is, in our judgment, a conclusive authority against the Quo Warranto. Woodworth, At'ney General,r-lroved for a rule that the defendants show cause, by the next Term, why an information, in the nature of a,Quio FI cariwranto should not be filed against them. Ile read affidavits stating that the road had been opened through the land of the,complainants, and used, without any offer h:aving been.made to them to agree upon the compensation, land with-,out havixgg theeo:dmnages ascertained according to law. E. Williams, contra. h Pc'r cUriam: If the defendants'have not followed tlhe directions of the act relative to the compensation to be made to the owners of landl tlhrouh wllich tile road had been mlllade, they are trespassers, and the complafinants havc. adequate remedy in the usual course of comnrm:-n law. The public are no way interested in the contro-versy or corn plaint, and that is a sufficient reason for not graniting this extraordinary remedy. Rule refused." We concede that a private ajld public reredly may co-exist. A private action and a public prosecution may in some cases bkoth be sustained. The sa-m- doctrine is laid doiwn in the case of' The People Ws. Bristol and Renssalearville'Turplik le Comallnlyv, 23 Wendlell's RepoySts 244-5. The principle now contended for (that there might be a remedy both by private actioII,and pubic prosecution,) yas arguecl in London vrs. Vanacre, 12 Mod. 270-1. It was held, as we before noticed, that the the city must forfeit.its francise of the Shievwetick if it did not elect a Sheriff an( compel him to serve. lie had refused to serve.' Holt said, as to the objection, that he may be indicted for this refusal, as was the case of Lanwood, Sh'ff of Norwich, I answer, that will not be sufficient to hinder the forfeiture of the franchise; for if there should be a vacancy when the'Sheriff co:nes to be sworn, there will be an obstruction of justice. " The ground wctas thatt a public inconveni.ce in not exercising the.fracachise wolcd wark: a forfeitu're, although there might, be another reinecmly.'" These cases clearly show the instances in which, a private action and a public prosecution may both be sustained. This rermedy is sought in the name and under the authority of the Commonwealth, rand cannot upon tlhe strength or reasoning Qf any authority adduced, be sustained upon allegation of apny mere private injury. We concede that "all franchises which are granted are upon condition that they shall be duly executed caccording to the Charter, that beisg a condition ann1?exed to the grant." This Company is not charged with the doing of- any act prohibited by its charter; with any infraction pf the law of its being. ': T/to C/alt?'taI' lie tI e /htc (!f t1ew' (a c.sae. If nonie of i' provisions have been violated, it is clifficult, to find any legitimate groundc to clemlandl its surrender." Cor'wcin V'8s. T'hlta liesturance Copmi2pa?', 14 Ol io Rel-po'ts, 10. Again, we deny that there was aniy legal evidence before the jury justifying the finding of that issue for the Commonwealth. See the testimony on pages 1, 2, 5, (near the bottom) 10 and 11, relative to Todd, in Judge Mce Clure's notes. The testimony of Cook, page 1, MAtclure'c notes shows conclusively that lie did not act Ilunder any resolhtion of the Board excludilng Todd and that he had never heard of any such resolution. The testimony of Robert Hall relative to his conversation with Stoner, page 2, was whlolly illegal. Ag'ain it will be observed it is neither charged nor found by the Jury that Todd and his family were excluded from passing the bridge, paying the regular trip toll assessed under the Charter upon all trip passengers; but si'mlply that he was not allowed to pass as a yearling. The commnutation was not a right but a privilege of the act of the Board in the exercise of their discretionary:powver. No improper exercise of that power being charged, it is presumed that just cause existed. And'so long as he was allowed to pass as required by the Charter paying' the regular trip toll there was no rightviolated. Having.kept themselves within the legal charge, the exercise of their discretion is not a subject for revision by the Court. But were it not so the evidence discloses a sufficient reason why Todd should have been required to pay by the trip. The suggestion charged the exclusion of Tod and hIs family; there was lnot one particle of proof before the jury of any resolution or action of the board or aly of its officets in "relation to the family of Tod, so'that the finding is without evidence to support it. The second'issue -if issule it lmay bJ)e called —is mla l-inmaterial. one. The isuggestion chllarge d an obligation to make return once in ten years, and averred,a neglect of the Companly to ntmake smlch return. The plea alleged that the Bridge was completed in 1819, and thit, after the thir(l year froml' tl)e -completion of the Bridge, the Cornpany did from thence forwtard tmake returns each alnMd every year. The replication avers that thle defendants did not each anld eve:y thirld year make such return as they were requirec d by law. This is a:total departure froml the alleged cause of forfeiture charged in the sugtgestion; and if the truth of the finding of the jury be conceded, there is no cause of forfeiture involved, as the replication charges no violation of the corporate duty under -the provisions of the charter. Concediing, then, verity to this finding, it is idle and wholly unavailing. No judgment of forfeiture or seizure could be legally or properly pronounced upon a finding involving no violation of charter. Again. The findling is unsupported by any evidence whatever. The law presumed that the Company hald performed its duty and made the requisite returns. The Commonwealth proved, (page 1, Judge McClure's notes,) Te.t''rlm from 1830 to 1850, except twoyears, 184-4.and i845. The Defendants proved (page 7) by Harper, treasurer, that he made returns every year from 1842 to 1851; iit is also stated on the JudTe's notes, page 9, that Mr. Haru per shows returns made to Auditor General's Office fro-m 1822 to 1848, inclusive; and the defendants also gave in evidence, page 9, a return made by the Treasurer of the Bridge Company, in 1822, to the Legislature. This proof sustained literally every allegation in the plea;, and went far beyond the averments of either suggestion or replication. Both legal presumption and proof were clearly with -the defendants. Aiganiiir. e d'ney that y a mere omlission to make 1i retLtrn i/n time is a legal cause of forfeiture of corporate riglits and corporate property. The 14th section of the original act of Incorporation: passed in iSIO, required returns to be macde every third. year from the date ot the act, until three years next after the bridge shall be completed; and if, at the end of three years after the completion of' the bridge, it should appear that the averarge profits wouldc not bear a dividend of' six per cent., the rates of toll might be increasedc so as to bear that cdividend. This section ftirther provided that, at the end of every ten years, an abstract of the three preceding yeaLrs- should be presented; and if it appeared that the clear plrofits and income would bear a, dividend of more than 15 per cent., the excess should coimpose a fund for the redempptiea of the Bridge, save a small toll or revenue to keep it in repair-the excess to be vested in Pank stock or other productive funds. This act having expired, was revived by subsequent act in 181G. The Stock was subscribed and the Bridge opened in 1819. Three years afterwards the first return was made. Thence forward an anntal return was mnade down to the present tinze. The object of the first return was to benefit the Com.pany by permlllitting a:n increase of toll in a certain contingency. The State, having become a subscriber, required by act annual returns to be made, so as to exert a more vigilant supervision. This provision superceded that in the charter, or, if it did not, the annual returns actually made were a virtual coompliance with the charter. It is obvious, moreover, that this provision was merely directory; a duty imposed on the officers, for the faithful perforimance of which penalties were iniposed on. 'tteln. And had there been totadl neglect, it, Woulli Idot work (a forfeiture of the charterl. Ilillolg r. lU'ido Cc. 12 (elm...... Thi]r ihd kIs6e'. Here again the replication goes entirely beIyond the suggestion. -The suggestion averred tlat tlihe profits-and income, iafter tle -first decenni:al pericd, bore a dtividend of more tllhn 15. per cent. The plea denied the avelrment. The replication ave rs that the profits and income did bear such dividecle, )1r' >Cold hlare elone, j' the acte of/ toll ll(,l dowe y th e c7h ar ter haed not bee'r redlcedl. Here entirely new miatter was introduced into the replication, and the Relator went before the j ury upon ta proposition not -at issue betwieen the parties, The jury, however, found no violation of duty by the defendants —there was no illegality in the profits exceeding 15 per cent. at any time, especially here as the jury found on the next (fourth) issue, that the defendants vested the excess of clear profits over 15 per cent. in Bank Stock and other productive fuinds. That they might exceed that sum was contemplated and permitted by the act, inasmuch as it pr'ovided for the investment of the surplus. The fourth, fifth and sixth issues, the only ones conw taining any serious charges against the defendants were found by the jury in their favor. It is but sheer justice to the defendants to say that there was not one particle of testimon.y before the jury to sustain the gross and infamous imputations contained in the sixth issue, and that the same was contradicted by the testimony of Anderson and Snyder, and also by volnmin1ous documentary evidence in the cause-demon strati g tlhat the charges against this Company emenated from thle.mere grossness of malice. The Rel ator expressly (illeges in the first s tuggestion thlat the bye-laws in relatiohl to yearly toll were enactedt Vy the (defendatnts flor their own government aiXd fQiS batt.er callrryingr into effect tthe provisions'of the Acts of Assembl1y" iricorporating the Company. This surely charges no assumption of power, neglect of duty, or violation of law, and in our judgment, requires no further argument. Seventh l.ssuce. To all the charges containecd in he Quggestion the defendants pleaded in bar of forfeiture that not any of them had been committed within twenty-oneu years next preceeding the filing of the sulggestion. rThat this plea, if true, is a full and complete bar to any judgment of f-rfeiture is well established bhy the following' authorities: Angell and Anmes on Corporations, 624. Sec. 5. Now the truth of this plea is either confessed by the plaintiff, or what is equivalent thereto, it remains unanswered upon the record, and no judgment of forfeiture Could be pronounced whatever might have been the charges alleged, and the finding of the Jury upon them. The reiator instead of answering the plea, replied that somne of the facts charged were committed within 30 years. By this, replication he admits their non-commission within twen.ty-one years, and, having himself taken the record dow.a for trial, leaving' a good plea unanswered, he is thereby precluded from questioning its truth. One further observation may be m'ale. The State was onle of the original Stockholders in this Company to the amount af $40,000, nearly one-half of the whole capita,l JLIt appears by the evidence upon the record, that in 1822, shortlt after the Bridoge was completed, a full statement w:a]s maade to the General Assembly, through one of its Senators, Condy Reguet, of the condition and acts of the Comptany, its system of tolls and the reasons for its adoption. From that time until 1843, a period of twenty yea1r, an aninuual statement of the afftairs of the Company was regula.rly mlade, and the State each year without complaint VteceiVe.d.:its regular.1 dividend;. This acquiesence:wou'l.dl seem to preclude all ground of forfeiture for any thing" prior to that time.i But in 1843 the-State, by Act of Assembly, offered her stockl in the market and sold to thle. present holders or those under whom they claim at a premium of about $8, on each share of $25. So that the receipts of.the State from the forty thousand dollars entrusted tothe management of this Company present the followilli result: Annual dividends, - - 70,000 00t'State Tax, - - 5,57 03 Proceeds of Stock Sale, -53,194 75 $128,851 78 For the State to forfeit the Stocik thus purchased from her by those in whose hands it now is, on the grounld of -antecedent irregularities however gross would be a viola"tion of public morals and justice. But the State in her ovwn Courts is governed by the -same legal principles that bind her citizens. Havinig bargained and sold this Stock for value she cannot avoid the sale and resume the franchises of the corporation for anry alleged forfeiture prior to her sale. Independent of this consideration it is claimed that no ground of reproach much less offorfeiture has occtrred at any time before or since that sale; and that upon each article and upon the whole record, the defendants are en-'titled to Judgment. A. W. LOOMIS, SHALER & STANTON, Attorneys for Defendants. UNIVERSITY OF MICHIGAN 3 9015 01771 7193