9 Mich. 285 (Mich. 1861), People v. Jackson & Michigan Plank Road Company

Citation:9 Mich. 285
Opinion Judge:Christiancy J.:
Party Name:The People v. The Jackson & Michigan Plank Road Company
Attorney:Gridley & Conely, in support of the demurrer. A. Blair, for the people.
Judge Panel:Christiancy, J. Campbell, J., Manning, J.concurred. Martin, Ch. J. concurred with Manning, J. CONCUR BY: Campbell; Manning Campbell J.: Martin Ch. J. concurred with Manning J.
Case Date:October 30, 1861
Court:Supreme Court of Michigan

Page 285

9 Mich. 285 (Mich. 1861)

The People

v.

The Jackson & Michigan Plank Road Company

Supreme Court of Michigan

October 30, 1861

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...

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