President, Managers and Co. of Washington v. State

• Decision Date: 17 December 1862
• Citation: 19 Md. 239
• Parties: THE PRESIDENT, MANAGERS AND COMPANY OF THE WASHINGTON AND BALTIMORE TURNPIKE ROAD, v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

19 Md. 239

THE PRESIDENT, MANAGERS AND COMPANY OF THE WASHINGTON AND BALTIMORE TURNPIKE ROAD, v. THE STATE OF MARYLAND.

Court of Appeals of Maryland.

December 17, 1862

Although provision may be made in its charter for the punishment of a turnpike company and its agents, if it shall neglect to keep said road in good and perfect repair, such provision cannot be held to deprive the State of its sovereign power to annul a grant, when its purposes have failed, through the positive or negative act of the party to whom the grant was made, and when, by a proper legal proceeding, the Court having jurisdiction shall have determined, upon evidence, the issue for the State.

It is a rule of almost universal application, that if a statute fixing a penalty for an offence, does not either expressly or by necessary implication, cut off the common law prosecution or punishment for the same offence, it shall be taken to intend merely a cumulative remedy.

A corporation, by the very terms and nature of its political existence, is subject to dissolution by a surrender of its corporate franchises, and by a forfeiture of them for wilful mis-user and non-user.

A general demurrer to a plea confesses all facts stated in the plea, provided such facts be well pleaded.

Upon a general demurrer, the Court will render judgment against the party which commits the first error in pleading.

Under the Act of 1860, ch. 32??, directing the State's Attorneys of certain counties to institute proceedings in the name of the State to ascertain whether the charter and corporate powers and franchises of an incorporated turnpike company " ought by reason of non-user or abuser, to be declared to be vacated and annulled," no form of proceeding being prescribed by the said Act--HELD: that scire facias is the appropriate remedy whereby to attain the object of the Act.

The Act of 1832, ch. 306, though prescribing the mode of proceeding by scire facias, created no new remedy, but was merely declaratory of the law as it then was, and its repeal by the Code took no jurisdiction from the Courts of Common Law, but left that jurisdiction undisturbed.

Where a scire facias setting forth the obligation of a defendant under an Act of incorporation, expressly charges a violation of that obligation, and the mode and manner in which it was violated, and, in the language of the Act, seeks " to ascertain whether the charter and corporate powers and franchises of the defendant ought not, by reason of non-user and abuser of said powers and franchises to be declared vacated and annulled--HELD: that such scire facias sets out a substantial cause of action, and with such certainty that the defendant is fully informed of the grounds on which the plaintiff seeks to recover.

Where the 1st and 2nd pleas to the foregoing scire facias presented, in substance, the following defence: that because the State, in the exercise of its sovereign powers, had authorized the building of a railroad between the same termini as those of a turnpike company previously incorporated by her, and because the building of said railroad was followed by a serious loss of revenue by the turnpike company, therefore the said turnpike company is relieved from the obligations imposed upon it by its charter, and the State disabled from instituting and prosecuting proceedings to vacate and annul its charter, unless in violation of the Constitutions of the State of Maryland and the United States--HELD: that such pleas do not offer a legal defence to the allegations of the scire facias, if those allegations are sustained by competent evidence, sufficient to justify the jury in finding for the plaintiff, on the issue of not guilty.

It may be true, as alleged in the 3rd plea to said scire facias, that the Act of 1838, ch. 54, recognized the corporate existence of the turnpike company, and admitted that its road was then maintained and kept in sufficiently good order and repair, and that during the whole of the year next preceding the issuing of said scire facias, it was kept in as good order and repair as when said Act was passed; or, as is alleged in the 4th plea, that the State, by its Acts of Assembly and the conduct of its officers, admitted that until 1858, the said road was kept in sufficiently good order and repair, and that while in that condition, the company was enabled to effect, by agreement, a sale of stock, from the proceeds of which sale the said road was put in better order during the year next preceding the issuing of said scire facias, than it was at the date of said agreement and sale; yet it cannot be successfully contended that the State, by its action set forth in said pleas, deprived itself of the right to institute the proceeding in this case.

Notwithstanding the Act of 1833, recited in the 5th plea, and the privilege to charge tolls on steam-carriages, and the resolution passed by the turnpike company, to contract for the loan of money upon the security of the tolls, and though the said company may have applied all the tolls (as stated in the 7th plea) to the repair of the road, the State is not barred by the matters so pleaded, of its right to institute the proceedings in this case.

A plea of limitations not filed within the time prescribed by the rules of Court, was properly stricken out by the Court below, and in the absence of the rule from the record, it must be presumed that the Court acted in conformity with its own rule.

The proceeding under the scire facias, in all its stages in this case, is essentially a civil action, and within the cognizance of the Superior Court of Baltimore city.

A witness, examined upon his voire dire, stated that he constantly used said turnpike road, sometimes commuting his toll by the year, and sometimes paying by the trip; and that if said road be condemned in the present proceeding, he will travel over it free of toll, because, in his opinion, it will then be a county road. HELD: That the interest disclosed by the answer of the witness, is not such as to disqualify him; and that if it appears to the Court that a witness is not, though he thinks himself interested, he shall be sworn in chief.

The plaintiff offered in evidence to the jury the want of repair of the defendant's road, in parts thereof lying outside of the limits of the city of Baltimore, the defendant objecting to the offer--HELD: That the objection was not tenable, because the road was an unit, and the evidence should be co-extensive therewith.

Where the evidence offered by the plaintiff and objected to by the defendants, was a want of repair of the defendants' road, " existing more than one year before the commencement of this prosecution," the Court held as follows: Conceding that a defence under Art. 57, sec. 10, of the Code, may be availed of under the general issue, without being specially pleaded, (though not so deciding,) the provision of the Code referred to does not apply to the proceeding in this case.

Although the result of a decision on the scire facias, against the defendant, will involve a forfeiture of its franchise, it cannot be said that this is a prosecution for a fine or forfeiture, within the meaning of the sec. and Art. of the Code referred to.

Questions propounded to a witness, on cross-examination, as to what were the calculations upon which were based certain expectations of profit from a contemplated purchase of the road by a new company, in the event of its condemnation, are wholly irrelevant to the issue in the case, and inadmissible.

The plaintiff having offered evidence tending to show the wilful neglect of the defendant to keep its road in repair, the defendant sought to rebut this evidence by proof of its inability to keep said road in repair, in consequence of certain legislation by the State--HELD: That such rebutting evidence was inadmissible.

A prayer submitting to the jury to find whether the defendant had failed and neglected to maintain and keep its road, or parts thereof, and the bridges over the streams crossing the road, in good order and repair, and whether the same were maintained in the manner prescribed by the Act of 1812, ch 326, and presenting to the jury the subject of inquiry, in conformity with the requirements of the Act, was properly granted.

APPEAL from the Superior Court of Baltimore city.

This is a scire facias, issued by order of the appellee against the appellant, in pursuance of the Act of Assembly of 1860, ch. 326, entitled, " An Act to authorize and direct the State's Attorneys for Baltimore city, Baltimore county, Anne Arundel county, and Prince George's county, to institute proceedings to forfeit the charter" of the appellants. The writ recites the incorporation of the appellants in 1812, and the making of the road in pursuance thereof. It recites, also, the duty imposed upon the company by the 13th section of their charter, with reference to the maintaining and keeping their road in good order and repair. It then avers that the defendants had " wilfully and for a long time neglected to keep their said road, or parts thereof, and the bridges over the streams crossing said road, in such good order and repair as are required by said Act, and by the thirteenth section especially, in violation of their chartered obligations, and in disregard of the rights of the State, and to the great injury, inconvenience and detriment of the public travelling upon said road." After referring to the Act of 1860, ch. 326, already mentioned, it concludes in the usual way, by calling on the defendants (appellants) to show cause " why their charter and corporate powers and franchises ought not to be declared to be vacated and annulled."

The appellants filed nine pleas, the first seven of confession and avoidance, the...