Submitted
on Briefs July 11, 1861
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Information in the nature of a quo warranto. The following is
the information:
"State
of Michigan, Supreme Court. Jackson county, ss.: Jacob M.
Howard, attorney-general of the people of the state of
Michigan, who sues for the said people in this behalf, comes
here into the Supreme Court of this state, on the eleventh
day of January, in the year one thousand eight hundred and
sixty, and for the said people of the state of Michigan, at
the relation of Edward Morrill and Nathaniel Morrill, of the
county of Jackson aforesaid, according to the form of the
statute in such case made and provided, gives the said court
here to understand and be informed, that the Jackson &
Michigan plank road company, to wit, at Jackson, in the
county of Jackson, for the space of five years now last past
and upwards, have used and still do use, without any warrant,
grant or charter, the following liberties, privileges,
franchises, to wit: That of being a body politic and
corporate in law, fact and name, by the name of Jackson &
Michigan plank road company, by the same name to plead and be
impleaded, to answer and to be answered unto; and also the
following liberties privileges and franchises, to wit: that
of constructing and maintaining a plank road, beginning at a
certain point in the county of Jackson, and terminating at a
certain point in the county of Eaton, and of levying,
collecting and receiving tolls from all persons using such
roads, and also the following liberties, privileges and
franchises, to wit: that of constructing and maintaining a
road, partly of plank and partly of gravel, beginning at a
certain point in the county of Jackson, and terminating at a
certain other point in the county of Eaton, and of levying,
collecting and receiving tolls from all persons using such
road, all which said liberties, privileges and franchises the
said Jackson & Michigan plank road company, during all
the time aforesaid, have usurped and still do usurp upon the
said people, to their great damage and prejudice. Thereupon
the said attorney-general prays the advice of the said court
in the premises, and due process of law against the said
Jackson & Michigan plank road company, in this behalf to
be made to answer to the said people, by what warrant they
claim to have, use and enjoy the liberties, privileges and
franchises aforesaid."
To this
information the defendants pleaded as follows:
"The
said Jackson & Michigan plank road company having
appeared in this court, by Gridley & Conely, the
attorneys for said company, and having heard the information
of the said people read, complain that, under color of the
premises in the said information contained, they are greatly
vexed and disquieted, and this by no means justly, because
protesting that the said information and the matters therein
contained are insufficient in law, and that the said company
need not, nor is it obliged by the law of the land to answer
thereto, yet for plea in this behalf, the said Jackson &
Michigan plank road company says, that by a certain act of
the legislature of the state of Michigan, approved on the 3d
day of April, A. D. 1848, entitled "An act to
incorporate the Jackson & Michigan plank road
company," it was enacted that George B. Cooper, Guy
Foote, Wilbur F. Storey, Amos Root, and Jeremiah Marvin be,
and they were thereby appointed commissioners, under the
direction of a majority of whom subscriptions might be
received to the capital stock of the said Jackson &
Michigan plank road company, and the subscribers thereto,
with such other persons as should associate with them for
that purpose, their successors and assigns, should be, and
they were thereby created a body corporate and politic, by
the name and style of the Jackson & Michigan plank road
company, with corporate succession; and it was further
enacted in and by said act, that said company thereby
created, should have the power to lay out, establish and
construct a plank road and all necessary buildings from
Jackson, in the county of Jackson, to Michigan (now Lansing),
in the county of Ingham, and that the provisions of an act
entitled "An act relative to plank roads," approved
March thirteenth, eighteen hundred and forty-eight, should
be, and were thereby made a part of said act approved April
3d, 1848; and the said Jackson & Michigan plank road
company further says, that by the said act approved March
13th, 1848, entitled "An act relative to plank
roads," it was enacted that all corporations thereafter
created for the purpose of constructing plank roads should be
subject to the provisions thereinafter contained; that all
such corporations should be deemed persons in law, and as
such capable of suing and being sued in all courts, and in
all manner of actions, and might have a common seal, and be
capable of purchasing and acquiring from any person or
persons, by gift, grant or otherwise, and holding any lands,
tenements and hereditaments necessary to be used in the
construction, repair and preservation of such road, and might
establish by-laws and regulations necessary for the
construction and preservation and repair of any such road,
and the erection of toll-gates and houses thereon; that
within six months after the passage of an act incorporating
any such company, the commissioners named therein should
proceed to estimate the length of the proposed road, and
cause books to be opened for the subscription of stock in any
such company, at such times and places as they might see fit,
first giving at least thirty days' notice thereof, which
said notice should be published in some public newspaper
printed in some county in which or through which some part of
the proposed road was to be constructed, and the said
commissioners or a majority of them should attend at such
times and places, for the purpose of receiving such
subscriptions. That whenever, according to the length of the
road as estimated by the commissioners, three hundred dollars
per mile of the capital stock of any such company should have
been subscribed, the commissioners should proceed to call a
meeting of the stockholders in any such company, by giving
notice of such meeting by publishing such call in some
newspaper published in one of the counties in or through
which the proposed road was to be constructed, and that such
notice should be signed by such commissioners or a majority,
and should specify the time and place at which said meeting
would be held, and should be published at least two weeks
consecutively next preceding the day of such meeting. That at
the meeting so called, the stockholders present should elect
not less than three nor more than five directors; and they,
the said directors, should proceed forthwith to elect from
their own number a president, treasurer and secretary; that
the business and property of such companies should be managed
and conducted by their respective boards of directors; that
the board of directors of such company, after the same should
become organized as required by the provisions of said last
mentioned act, should proceed to cause an accurate survey and
description to be made of the route of their road, and of the
land necessary to be taken by said company for the
construction of such road, and the necessary buildings and
gates; that they should subscribe such survey, and
acknowledge its execution as the execution of deeds was
required to be acknowledged, in order that they might be
recorded, and they should cause such survey to be recorded in
the register's office of each county through which their
road might pass; that the route so laid out and surveyed by
the said board of directors of such company should be the
route of such road; that whenever any such company should
have completed their road, or any five consecutive miles
thereof, the directors thereof might erect toll-gates and
exact tolls from persons traveling on their road for so much
as might be completed, at a rate not exceeding two cents per
mile for any vehicle or carriage drawn by two animals, and
one cent per mile for every sled or sleigh so drawn, and if
drawn by more than two animals, three-quarters of a cent per
mile for every additional animal; for every vehicle, sled,
sleigh or carriage drawn by one animal, one cent a mile; for
every score of sheep or swine, half a cent a mile; for every
score of neat cattle, two cents a mile, and for every horse
and rider or led horse, one cent a mile; as in and by the
said acts of the legislature of the state of Michigan,
reference being thereunto had, will, among other things, more
fully and at large appear.
"And
the said Jackson & Michigan plank road company further
says, that the said commissioners named in the said first
mentioned act of the legislature, did, within six months
after the passage of the act incorporating said company
proceed to estimate the length of the proposed road of said
company, and did cause books to be opened for the
subscription of stock in said company, after having given at
least thirty days' notice thereof by publishing the same
in the Jackson Patriot, a public newspaper then printed in
the county of Jackson, the said county being one of the
counties in which some part of the proposed road was to be
constructed, and the said commissioners, or a majority of
them, did attend at the times and places specified in said
notice, for the purpose of receiving such...
