State ex rel. Green v. Lawrence Bridge Co.

22 Kan. 438

• Court: Supreme Court of Kansas
• Decided: July 15, 1879
• Status: Published

Opinions

The opinion of the court was delivered by

Horton, C. J.:

This is an action in the nature of quo warranto,, brought originally in this court by the state of Kansas, ex rel. James W. Green, county attorney of Douglas county, as plaintiff, charging C. W. Babcock and his associates with wrongfully assuming to exercise corporate rights as the “Lawrence Bridge Company,” and with claiming and using, without any lawful warrant, grant, or charter, the liberties, privileges and franchises of having and maintaining a bridge over and across the Kansas river at the city of Lawrence, and of asking, demanding and taking certain tolls and duties of and from all persons crossing, passing over, and using the said bridge. The petition also alleges that the bridge is a highway across the said river, at Lawrence, and the only means accessible to the public of crossing the river for many miles on either side of the bridge. The plaintiff asks that the defendants be enjoined perpetually from exercising corporate rights as the “Lawrence Bridge Company;” from demanding or receiving tolls; from obstructing or removing the said bridge or highway, and from all interference therewith. To the petition of plaintiff, the defendants pleaded that, by the act of the late governor and legislative assembly of the territory of Kansas, entitled “An act to incorporate the Lawrence Bridge Company,” approved February 9, 1858, the exclusive right and privilege of building and maintaining a bridge across the Kansas river at the city of Lawrence was granted, for the period of twenty-one years, to defendant C. W. Babcock and others, or their assigns, and such other persons as might be associated with them for that purpose, and that they and their associates, or a majority of them, were authorized to form a company to be known as the “Lawrence Bridge Company,” with capital stock to the amount of $375,000, in shares of $100 each, and power was given by that act to prescribe by-laws for the regulation of said company, receive and collect subscriptions to such capital stock, and establish and collect tolls for crossing said bridge; that under said act and certain amendatory acts thereto, the said C. W. Babcock and his associates duly organized the Lawrence bridge company, and before October 1st, 1863, constructed and completed the said bridge across the Kansas river, at Lawrence, at the cost and expense of $75,000, and have ever since maintained and been in the possession of it; that to continue and perpetuate the existence •of the Lawrence bridge company, with all the privileges and franchises conferred upon it by the provisions of the said .act of incorporation of 1858, and acts amendatory thereto, the corporation on February 8, 1879,'by a vote of its board ■of directors, accepted all the provisions of the act of the legislature of the state entitled “An act concerning private corporations,” approved February 29, 1868, and all acts of the legislature of the state amendatory to that act, applicable to the exclusive right and privilege of building and maintaining .a toll-bridge across the Kansas river at Lawrence, and the collection of tolls, but said corporation did not abandon, by •such acceptance, any privilege or franchise conferred upon it by its acts of incorporation, consistent with the provisions of the general incorporation act of 1868, and that therefore by virtue of § 25 of said general incorporation act of February '29, 1868, (Gen. Stat. 196, 197,) and by the filing of the said certificate of acceptance, the bridge company, from February •8, 1879, has had the exclusive right to carry out its objects, as described in the special acts of its incorporation, without .any limitation as to time, and is still the owner of the bridge, with all its original franchises and privileges, including the franchise of being a corporation and the taking of tolls. •Some other matters are stated in the answer, but it is unnecessary to refer more fully to the defenses. The twenty-one years given by the special act of Feb. 9, 1858, incorporating the Lawrence bridge company, within jvhich it had the right to build and maintain a bridge across the Kansas river at Lawrence, and collect tolls on such bridge, expired before the commencement of this suit. Hence, the first and important question which is presented for our consideration is, whether this company was continued and perpetuated as an incorporation for all time, with all the privileges and fran•chises originally conferred under its special charter of February 9,1858, and the amendments thereto, by. the action of its board of directors accepting, on February 8, 1879, certain •provisions of the general act of 1868 concerning private corporations, and forthwith filing a copy of such acceptance with the secretary of state ? This inquiry leads to an examination-of § 25, ch. 23, Gen. Stat., and necessarily compels us to pass-upon the validity of so much of that section as attempts to-authorize corporations organized under special laws of the territory to continue to enjoy and exercise all their powers,, privileges and franchises originally conferred, for an indefinite-period beyond the limit of their chartered existence.

SeGe^’stat.f’ construed. Before the adoption of the constitution, the practice waste create corporations by special laws. This practice resulted in partial, vicious and dangerous legislation. To correct this-existing evil, and to inaugurate the policy of placing all corporations of .the same kind upon a perfect equality as to all-future grants of power, of making such law applicable to all parts of the state, and thereby receiving the vigilance and attention of its whole representation, and finally, of making all-judicial construction of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class (Atkinson v. Railroad Company, 15 Ohio St. 21), it was ordained by §1, art. 12 of the constitution, that, “the legislature shall pass no special act conferring corporate-powers. Corporations may be created under general laws;, but all such laws may be amended or repealed.” These provisions are clear and explicit; they are a limitation upon the legislative power of the state. Any act expressly violativeof these provisions would be void, and the well-recognized rule that what may not be done directly cannot be done indirectly, is as applicable here as elsewhere. Constitutional provisions would be of little value if they could evaded by a mere change of forms. We may look, therefore, to the-substance, purpose and effect of said § 25 in determining its-true character. While the corporation act of ch. 23, Gen. Stat., purports to be a law of a general nature, having a uniform operation thoughout the state, § 25 thereof occupies an. anomalous position. It is sui generis. It is virtually separate and distinct from the other provi- . A 1 , 1 sions of the chapter, and entirely independent-That it attempts to confer corporate powers, is conceded.. If sustained at all, it must be on the basis that it is a general law within the meaning of art. 12 of the constitution. Yet this section, if effective, confers corporate powers which are special to separate corporations, chartered by special acts of the territory of Kansas, and which powers are not granted to any other corporation, and no other corporation can come into its class or obtain its privileges or immunities. No corporation organized under the other provisions of the general incorporation law can obtain the powers and franchises attempted to be granted to territorial corporations by this section. It may be fittingly described as an omnibus act, loaded to overflowing with special charters— some good, others bad, and many vicious; and each of these charters which is sought to be continued by this act confers corporate powers and privileges distinct, exclusive and separate from every other corporation, and these powers and privileges do not belong or attach to all corporations of the same class, nor can all corporations of the same class upon the same terms enjoy like powers and privileges. It is too palpable for argument, that article 12 is a sure and perfect impediment to the adoption by the legislature of a special act conferring corporate powers. If it may obstruct the passage of one such act, is it not equally as effective to resist the passage of a score or more acts of like character, notwithstanding the attempt be made, as by § 25, to give them existence and vitality under the form of a general law? Legislation of the class attempted in § 25 is most harmful. An evasion of so important a provision of the constitution ought not to be favored in any degree. The abuses and corruptions in legislation are mainly the result of private and special laws, and the remedy, and the only remedy which has proved effectual to prevent this, is found in severely depriving the legislature of the power to legislate for any citizen in preference to or at the expense of the whole. Obsta principiis — stop the beginnings, and stop them decisively, is very necessary to such legislation as is attempted by said section 25. If sustained, it fritters away § 1 of art. 12, defeatsdhe object of its provisions, and permits the abuses which it was intended to prevent.' If sustained, corporations can again be created or extended in their existence all over the state, with just such powers and franchises as the territorial legislature may have conferred by special charters at its pleasure or caprice, at a time when its power was unrestricted by any such wholesome constitutional provision as is imposed by §1, art. 12, on the legislative power of the state. If sustained, the legislature can go a step further, and .provide that all corporations created with special powers and privileges by special charters, during the territorial years of Kansas, whether organized or not, and whether in existence or not, may at once be rehabilitated with all their original powers and franchises.

T The Lawrence panyims-”1' soiveci. . Under our construction of said § 25, we do not think it can be denominated a general law in the sense in which these words are used in said art. 12. It directs us to special acts and charters, and attempts to continue them in existence. It does not in itself enumerate the powers of the corporations, but these powers are enumerated in the various special acts to which we are directed by it. It is therefore a plain evasion of the provisions of said art. 12, and fails to be a legal ■enactment. Such legislation proves rich in every inducement to deception, injustice and evil. It, being void, had no power to continue the Lawrence bridge company in the enjoyment of. the exclusive rights, privileges and franchises granted by the charter of that company. Said corporation ceased on February 9, 1879. It was then dissolved, with J 7 7 all the consequences,of its dissolution. To prevent any misconception of this opinion, we add that said §25 does not fail to be a general law merely because it does not operate alike upon all citizens or corporations of the state, for many of our laws fail to do that. Take ■ the case of the general laws for the incorporation of cities. By these laws, certain rights, powers and privileges are conferred upon cities of the first class, of which there is but one in the state; certain other and different powers and privileges are conferred upon cities of the second class, and still different and less upon cities of the third class. Yet in these various laws, every city which is brought within the relations and circumstances provided for, is affected by the law. These acts do not grant to any city powers and .privileges which, upon the same terms, do not equally belong to every other city. Whenever a city comes into any class, it has all the powers and privileges which have been granted by the statute to any other city of that class. Thus, when a city of the second class has more than fifteen thousand inhabitants, it obtains and enjoys all the powers and privileges of a city of the first class; so, when a city of the third class attains a population of more than two thousand, it may possess the powers and privileges of a city of the second class. Again, when a city of the first class.loses its population until it becomes a city of the second class, it takes the powers of a city of that class; so, likewise,-when a city of the second class has only inhabitants sufficient to constitute it a city of the third class, it falls back to a city of the third class. The enforcement of said § 25 would give no like results. The corporate powers which it seeks to confer are special and exclusive. Corporations are not permitted by it to be on an equality nor enjoy powers upon the same terms as belong to other corporations. There is a wide distinction between such an act as § 25 and the act incorporating cities of the first class and other similar acts which have often been held valid by. this court.

Taepubuc£gheIn view of the inability of the Lawrence bridge company to prolong its corporate existence by virtue of the unconstitutional provisions of § 25 of the general incorporation act of 1868,-and its legal dissolution on February 9, 1879, by expiration of the time limited for its continuance by the special act under which it was created, it is important for us to determine what became of the bridge when the franchises of the corporation ceased by limitation. The evidence shows it was completed in the fall of 1863, more than fifteen years ago; that neither the corporation, nor any of the corporators, ever owned any fee in any of the lands on which it was built, or ever leased any real estate on which it was constructed and maintained; that the approach to it on the south side was from the end of Massachusetts street across the levee (a plat of ground reserved to the public in laying out the city of Lawrence) to the south end of the bridge, and on the north side from Bridge street across a lot belonging to one Sarcoxie, to the north end of the bridge; that it is an immovable structure or extension of the highway over and across the Kansas river; that it was constructed for the convenience of the public, in the hope of profit to the corporation having the franchise; and that, since 1863, it has been used by the public as a thoroughfare, up to the time of bringing this suit, uninterruptedly and without molestation, except as to the taking of tolls. Under these facts, the bridge is unquestionably a public highway. The corporation lived its time out on February 9, 1879. Its franchise to demand and accept tolls then ceased. Thereafter the free use of such public highway would be in the people. They have now the same right to its use as they have to the use of Massachusetts street, or Bridge street, or any other public highway of Douglas county. We do not rest this decision upon the basis that the Kansas river is a navigable stream, and therefore a common highway, and the bridge a part of such, highway, although a strong argument can be formulated that in this case the river might be treated as navigable, as the charter giving the bridge company life assumed the river to be navigable, and expressly required of that corporation the construction of its bridge over the water in such a manner as not to prevent the navigation of the river by steamboats, and from the additional' fact that, up to 1860, the river was used to some extent for the purposes of navigation. But waiving the question of the navigability of the Kansas river, the Lawrence bridge company, by the manner of constructing the bridge and opening it for use, and having it used for fifteen years as a part of the highway, or as an extension of the highway, over and across the river, on payment of toll, dedicated it to the public as fully and completely as it could have been by a deed of dedication acknowledged and recorded. When the license to take tolls expired, the public took the bridge disburdened of tolls. Craig v. People, 47 Ill. 487; State v. Lake, 8 Nev. 276; Central Bridge Corporation v. Lowell, 15 Gray, 106; Thompson v. Matthews, 2 Edw. (N. Y.) Ch. 212.

There is no hardship in this result.. Toll-roads or turnpikes and plank roads, constructed under public authority for public use by incorporated companies, with provisions in the acts of incorporation for their management, are common highways; and the only difference between them and other common highways is, that instead of being made at the public expense in the first instance, they are authorized and laid out by public authority and made at the expense of individuals or corporations in the first instance, and the cost of construction and maintenance is reimbursed by tolls, levied by public authority for the purpose. (Angelí on Highways, §§ 8, 9 and 14.)

By analogy, considering the manner the bridge in controversy was built, its situation and use, it bears a close relation to toll and plank roads. In this case, the bridge company has received tolls for over fifteen years, and located as the bridge has been at a point of great travel and business interests generally, it is very probable that the tolls have been more than sufficient to repay the cost of its construction and maintenance. At least, we may assume that this was the hope of the corporators in accepting the provisions of the charter, and in constructing the bridge; and we cannot believe they have been the unfortunate victims of a harsh contract. If not, no injustice is sustained by them, that the bridge on the expiration of their franchise or license to take tolls, becomes free to the use of every citizen, as other public highways. If the claim of defendants is valid, that the bridge itself is the private property of the stockholders, to be hereafter managed by them or through their trustees, then the expiration of the charter of the corporation would be beneficial rather than injurious to them, for it would emancipate the bridge from the control of the law, and convert the limited privileges of the stockholders into a broad, unbounded license. We do not mean that it could not be ultimately taken and condemned for a highway if it were needed, but unless so taken and condemned they could use it, as other people use their own, run it on their own account, charge what tolls they pleased, close it up or open it when they thought proper, and disregard every interest except their own. This claim of counsel overlooks the fact that the bridge was constructed under authority obtained from the public, and that the public have already paid for it by tolls levied by public authority. In this condition of affairs, the public have some rights in the continuance of the bridge or highway in its present position. Under §42, ch. 23, Gen. Stat., the officers or 'managers of the late corporation have full authority to settle the business of the corporation, and divide the moneys and other property among the stockholders; but the bridge being an extension of the highway over the Kansas river and a part of the public highway, is not the property of the stockholders of the 'late corporation, but is a public road which every citizen has the right to use. The period during which it was lawful for the corporation to take tolls has long since expired, and now neither the officers, managers nor stockholders .of said corporation have any further control over the bridge or highway. They cannot obstruct it, or collect tolls, or remove or otherwise interfere with it.

The injunction prayed for in the petition of plaintiff will be granted, and such injunction will be made perpetual. Costs are also adjudged against the defendants.