Attorney General v. Joy
| Decision Date | 15 October 1884 |
| Citation | 55 Mich. 94,20 N.W. 806 |
| Court | Michigan Supreme Court |
| Parties | ATTORNEY GENERAL v. JOY. |
The information in this case charges the respondents with claiming and usurping the corporate right, liberty privilege, and franchise known and called "The Detroit, Grand Haven & Milwaukee Railway Company," claiming to be organized and incorporated under some act or acts of the territory of Michigan or of the state of Michigan, with being in fact so organized and incorporated, and also the corporate franchises, liberties, and privileges of keeping maintaining, and operating a railroad extending westward from Pontiac to Grand Haven, and that of levying and receiving tolls and fares from passengers transported on said railroad and of levying and collecting freight charges for carrying freight in cars upon said railroad, and calls upon them to show by what right they claim to exercise and use such franchises and corporate rights. The defendants have pleaded to the information, setting out in full the title on which they rely. The title relied upon is as follows: (1) The charter of the Detroit & Pontiac Railroad Company for the building of a railroad from Detroit to Pontiac, which was granted by the territorial council of the territory of Michigan, March 7, 1834, under which a railroad company was organized, which completed and put in operation a railroad between the towns named by October 1, 1884. (2) The charter of the Oakland & Ottawa Railroad Company, granted April 3, 1848, for the construction of a railroad from Pontiac by way of Fentonville to Lake Michigan, under which a railroad company was organized, the line of the road located and construction begun. (3) An act of the legislature approved February 13, 1855, whereby the name of the Detroit & Pontiac Railroad Company was changed to the Detroit & Milwaukee Railway Company, and the company, for the purpose of forming a continuous line, was authorized to purchase all the rights, property, and franchises of the Oakland & Ottawa Railroad Company. The purchase is alleged to have been made, and thereby the Detroit & Milwaukee Railway Company became authorized to own, possess, build, and maintain a continuous line of railroad from Detroit through Pontiac, and by way of Fentonville to Lake Michigan, and did, under the name last aforesaid, publicly use and exercise said corporate rights, privileges, and franchises, and did proceed to complete the building and equipment of such railroad, and did, on November 22, 1858, complete, equip, and put in operation said railroad, so as to form a continuous line of railroad from Detroit through Pontiac, by way of Fentonville, to Grand Haven, on Lake Michigan, and did thereafter continue to operate the same until it was sold on foreclosure, as hereafter stated. (4) It is averred that the legislature, after said act of 1855, did solemnly, by repeated acts of legislation duly passed by votes of more than two-thirds of all the members elected to each house thereof, recognize, confirm, and ratify the said act, and did also recognize and confirm the said Detroit & Milwaukee Railway Company as a body corporate, lawfully organized and existing under the provisions of said act.
The subsequent acts are enumerated, and are the following: (a) "An act to authorize the Detroit & Milwaukee Railway Company to issue its shares in the kingdom of Great Britain," approved February 14, 1857. (b) "An act disposing of certain grants of land made to the state of Michigan by act of congress approved June 3, 1856," approved February 14, 1857. (c) "An act to authorize the directors of the Detroit & Milwaukee Railway Company to be represented at the board of directors by proxy," approved February 3, 1858. (d) "An act to legalize certain loans made by the Detroit & Milwaukee Railway Company, and to permit further loans," approved January 29, 1859. (e) 'An act to authorize the Detroit & Milwaukee Railway Company to purchase the property, rights, and franchises of the Port Huron & Milwaukee Railway Company," approved January 29, 1859. (f) "An act to authorize the Detroit & Milwaukee Railroad Company to issue stock in place of the original stock of the Detroit & Milwaukee Railway Company," approved March 4, 1861.
The plea then avers the borrowing of money in 1855, and afterwards, by the Detroit & Milwaukee Railway Company, and the giving of mortgages to secure the loans, the foreclosure of certain of the mortgages, and the sale of the railroad, with its appurtenances, on October 4, 1860, to Thomas Reynolds and William Gray, and the subsequent reorganization of the company by the purchasers under the name of "The Detroit & Milwaukee Railroad Company." Also a subsequent foreclosure, but of prior mortgages, under which, on September 4, 1878, the railroad, with its appurtenances and franchises, was again sold to Samuel Barker and others, who reorganized the same under the name of "The Detroit, Grand Haven & Milwaukee Railway Company," and that thereby the said Detroit, Grand Haven & Milwaukee Railway Company, a lawful corporation, possessed of all the franchises and privileges of said Detroit & Milwaukee Railroad Company, and authorized to maintain said railroad, with its appurtenances, franchises, and privileges, and that the respondents have been and are stockholders and directors thereof, and as such they lawfully claim and exercise the franchises in question.
Such is the title upon which the respondents rely.
The attorney general has demurred to the plea, and the case has been brought to a hearing upon demurrer. The question is whether the title set out in the plea is sufficient. The attorney general contends that it is not, and points out certain particulars in which it is supposed to be defective.
1. It is said that the act of February 13, 1855, through which the Detroit & Milwaukee Railway Company made claim to the franchises and privileges which had before that date pertained and belonged to the Detroit & Pontiac Railroad Company, and to the Oakland & Ottawa Railroad Company, was never constitutionally passed, and therefore never became a law at all, but was a mere nullity. The act was one purporting to amend or alter a corporate charter, and therefore, under the constitution, (article 15, � 8,) required the assent of two-thirds the members elected to each house. Referring to the legislative journals, they seem to show that the affirmative vote in the lower house lacked one of the necessary two-thirds. Consequently, it is said, the Detroit & Pontiac Railroad Company never acquired the franchises of the Oakland & Ottawa Railroad Company, and the Detroit & Milwaukee Railway Company was never legally organized. This is a somewhat startling proposition, in view of the vast interest that may be affected by its being sustained, and we have listened with great interest to the views which have been advanced in its support. And it must be conceded that if we look no further than the act now under consideration, the prima facie case is with the attorney general. A bill considered in the legislature, but not constitutionally passed, can never become a law by its being signed by the governor and published with the statutes. That is too plain a proposition to need argument or illustration. But it is a surprising fact, if the vote was insufficient, that the question of invalidity was not sooner raised. Nothing was better understood at the date of the act in question than the requirement of the constitution in respect to the amendment of corporate charters; the subject had been largely discussed when the constitution was before the people for adoption five years before, and the provision on the subject was regarded as of great importance. There was a considerable vote in opposition to the act in question, and if the vote in its favor was insufficient, it seems strange that attention was not challenged to the fact immediately. It is customary in this state to publish the daily journals of the legislature in full, and to place printed copies on the desks of members on the morning of the day succeeding the one whose proceedings they give; and it seems incredible that if a mistake was made in declaring a bill passed which had not received the necessary vote, the mistake should not have been discovered as early as the day following. When the circumstances and the legislative custom are taken into consideration, there is much ground for the suggestion which is made on the part of respondents, that a mistake occurred in the making up or printing of the journal, and that the mistake probably consisted in the omission of one or more names in giving the final vote. And plausibility is given to the suggestion by the fact that 12 members of the house are not recorded as having voted at all when the bill was put upon its passage. But we cannot now judicially determine that there was any such mistake; the legislative journals furnish no proof of it, and it remains merely a plausible conjecture. We direct our attention, therefore, to the facts occurring since, and which are relied upon as giving validity to the act of 1855, even though it may not have been constitutionally adopted.
The subsequent facts to be considered embrace--First, the acts of the stockholders in the several railroad companies and of other persons done in reliance upon the act of 1855; and, second, the acts of the state itself in recognition of that act.
And first, of the acts of stockholders. It appears beyond dispute or cavil that the stockholders in the Detroit & Pontiac and the Oakland & Ottawa Railroad Companies accepted the act of 1855 and acted upon it as valid legislation; that the one class bargained and paid for the rights and franchises belonging to the other, and the other sold them; that the...
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