Attorney Gen. v. Petersburg & Roanoke Rail Rd. Co.

• Decision Date: 30 June 1846
• Court: North Carolina Supreme Court
• Parties: ATTORNEY GENERAL v. THE PETERSBURG AND ROANOKE RAIL ROAD COMPANY.

6 Ired. 456

28 N.C. 456

ATTORNEY GENERAL

v.THE PETERSBURG AND ROANOKE RAIL ROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1846.

An information, filed by the Attorney General for the purpose of having the charter of an incorporation declared to be forfeited, though it need not be expressed in technical language, yet it must set out the substance of a good cause of forfeiture in its essential circumstances of time, place and overt acts.

When the legislature required “the grounds” to be set forth, on which the forfeiture is alleged to be incurred, nothing less could be meant, than that the information, like an indictment or declaration, should state with certainty to a common intent those facts and circumstances, which constitute the offence in its substance, whether of misfeasance or non-feasance: so that on its face, if true, it may be seen that there is a specific ground in fact, and not by conjectural inference, on which a forfeiture ought to be adjudged.

When a charter expressly imposes a duty, which the corporation is to perform, not merely to the citizen, but towards the sovereign itself, although it may not declare that performance shall work a forfeiture, yet it must be taken to have been required by the State as a material stipulation, for the non-performance of which by the corporation the State may put an end to the contract.

But if the sovereign, with us the law making power, with a distinct knowledge of the breach of duty by the corporation, a knowledge declared by the legislature, or so clearly to be inferred from its own archives that the contrary cannot be, thinks proper by an act to remit the penalty, or to continue the corporate existence, or to deal with the corporation as lawfully and rightfully existing, notwithstanding such known default; such conduct must be taken, as in other cases of breaches of conditions, to be intended as a declaration, that the forfeiture is not insisted on, and, therefore, as a waiver of the previous defaults.

This is an information, filed in this Court, on the 19th of Jannary, 1846, by the Attorney General, charging a forfeiture of the charter of the corporation. The information states, “that by an act of the General Assembly, passed in the year 1830, entitled an act,” &c. it is enacted, “that books be opened for the purpose of receiving subscriptions to the amount of $400,000, to constitute a joint capital stock for the purpose of making a rail road from some point, within the corporation of Petersburg, in Virginia, to some convenient point on the north bank of Roanoke river, between the towns of Weldon and Halifax”; and that by the said act, “the said Petersburg Rail Road Company is invested with all the rights and powers necessary for the construction, repair, and maintaining of the said rail road, to be located as aforesaid, and to make and construct all works whatever, which may be necessary and expedient, in order to the proper completion of the said road, and also power to contract with any person or persons for making the said road and performing all other works respecting the same, which they shall judge necessary and proper, and to purchase, with the funds of the said company, and place on the rail road constructed by them under the said act, all machines, wagons, vehicles and teams of any description whatever, which they may deem necessary and proper for the purpose of transportation”; and that, by the said act, it is further enacted, “that it shall be the duty of the President and Directors of the said Company to render to the Legislature of this State annually, a fair account of the expense in constructing and keeping in repair that part of the said rail road, within this State, and the amount of tolls received on the same; and that, whenever the amount of tolls so received shall equal the sum expended in constructing that part of the road, with six per centum per annum on that sum, from the time it was so expended, then it shall be in the power of the Legislature so to regulate the rate of toll, that the nett amount annually collected shall not exceed six per centum per annum on the sum originally expended.” The information then states further, “that the said Petersburg Rail Road Company, under the provisions of the said act of the General Assembly, have now for many years had their said rail road completed, and have placed the terminus thereof in North Carolina, at Blakely, on the north bank of the Roanoke river, in the county of Northampton, and, since the completion thereof, have had the said rail road in constant operation; and that, by the provisions of the said act of the General Assembly, the said Petersburg Rail Road Company ought to have returned, and are bound to return, unto the said General Assembly, annual reports of the tolls, freights and receipts of that part of their said rail road in North Carolina, as well as to make returns of the original cost of the construction of the same, in order to enable the said General Assembly to regulate the tolls on the said rail road; but that the said President and Directors in behalf of the said Petersburg Rail Road Company, have failed to make the said returns.”

The information then further states the acts of Assembly of 1832 and 1833, whereby the Portsmouth and Roanoke Rail Road Company was made a body politic and corporate, for the purpose of making a rail road from Portsmouth in the State of Virginia to the south bank of the canal in Weldon in this State; and that the said road was completed in the manner directed by the said acts. And the information then proceeds further: “that by the proper construction of the said act of the General Assembly, passed in the year 1830, the said Petersburg Rail Road Company can only apply the monies raised by the subscription aforesaid, and the moneys arising from the tolls, freights, and other sources for the transportation of produce and passengers, to the making and preserving of the said rail road and repairing the same, and can only contract with other persons for the like purposes, and that all moneys received by the said company, are, and ought to be applied to the said purposes, and, should any remain, the same is, by the said act of the General Assembly, to be paid to the subscribers holding stock in the said Petersburg Rail Road Company.” The information then proceeds further: “That that part of the said Portsmouth and Roanoke rail road, which lies in the county of Northampton, including the bridge across the Roanoke river at Weldon, hath heretofore been sold under executions issuing from the counties of Northampton and Halifax, and that Francis E. Rives was the purchaser under the said executions”; but the Attorney General says that the franchise granted to the said Portsmouth and Roanoke Rail Road Company, does not pass by the said purchase and conveyance from the sheriff of Northampton under the said executions, to the said Francis E. Rives, but remains and is now in the said Portsmouth and Roanoke Rail Road Company; and that the said Petersburg Rail Road Company, on the 14th day of June now last past, entered into the following contract with the said Francis E. Rives, to-wit: “Whereas the said Rives is the proprietor of the Weldon bridge, constructed over the Roanoke river in North Carolina, subject to a mortgage thereupon to secure a debt of $8,000 to the State of North Carolina, and of that portion of the rail road constructed by the Portsmouth and Roanoke Rail Road Company, which extends from the town of Weldon to the Margaretsville depot, in that State, and he has offerred to sell the same to the said Portsmouth and Roanoke Rail Road Company for $50,000; which offer the said Company has rejected: And whereas the said Company obtained from the Legislature of North Carolina the passage of an act to authorize the sale of the whole rail road and other property belonging thereto, unto a new company, which act will go into operation if ratified by the General Assembly of Virginia: And whereas, from the present condition of the said company, it is believed, that its means are not adequate to the purchase of the said Rives' interest, and to the continuing of rail road business, unless the whole road and stock can be sold out to a new company, which must necessarily be effected at a very low price, so that the large pecuniary interest of the State of Virginia in said road must in any event be almost wholly lost. And if such a new company be organized, it will most probably be by non-residents of this State and her interests in the upper rail roads will be greatly impaired in value: And whereas it is of great importance to the stock-holders in the Petersburg Rail Road Company, of whom the State of Virginia is one to the extent of $323,500, to prevent the competition of any such plan, as is above specified, and the said Rives is willing for a reasonable compensation to prevent his portion of the said road from being used, with his consent, for the purpose aforesaid, the following stipulations have been agreed upon by the parties to these presents: The Petersburg Rail Road Company hereby agree to pay to Francis E. Rives the sum of $60,000 in the following manner, namely, $2,500 on the 1st day of September next, and the same sum every three months thereafter until the sum of $20,000 shall have been paid to him: Then $1,250 every three months after that time until the whole sum of $60,000 shall be fully paid; provided that, during the whole period aforesaid, that part of the Portsmouth and Roanoke Rail Road, which was purchased by him from Weldon to Margaretsville and the Weldon bridge shall remain unused as a rail road for the transportation of persons or produce, and in case the said road or bridge shall be so used for rail road purposes, the payment aforesaid shall cease.” The information then sets out the residue of the agreement to the effect, that if there should be any legal proceedings taken for putting the road...