Sisters of Charity of St. Elizabeth v. Morris R. Co.

• Decision Date: 24 April 1913
• Citation: 86 A. 954,84 N.J.L. 310
• Parties: SISTERS OF CHARITY OF ST. ELIZABETH v. MORRIS R. CO.
• Court: New Jersey Supreme Court

86 A. 954

84 N.J.L. 310

SISTERS OF CHARITY OF ST. ELIZABETH

v. MORRIS R. CO.

Court of Errors and Appeals of New Jersey.

April 24, 1913.

White, J., dissenting.

Error to Supreme Court.

Certiorari by the Sisters of Charity of Saint Elizabeth against the Morris Railroad Company to reverse an order appointing commissioners to appraise lands. The Supreme Court affirmed the proceedings under review (83 Atl. 487), and. prosecutor brings error. Affirmed.

Robert H. McCarter and Kinsley Twining, both of Newark (Edward K. Mills, of Morristown, and Arthur F. Egner, of Newark, on the brief), for plaintiff in error.

Elmer King, of Morristown, and Alan H. Strong, of New Brunswick, for defendant in error.

SWAYZE, J. We agree with the result and the reasoning of the Supreme Court and would add nothing but for the fact that an expression in the opinion seems to have been misunderstood and given a meaning more extensive than is warranted when the opinion is read in view of the facts of the case.

The learned judge who spoke for the Supreme Court said that it was settled by that court upon the motion to strike out reasons that the prosecutor (now the appellant) had no right to inquire into the legality of the corporate existence of the defendant. The opinions upon the motion to strike out added that it was enough that the corporation might be such de jure and was such de facto. This was the logical result of the decision of this court in National Docks R. Co. v. Central R. R. Co., 32 N. J. Eq. 755. It was held in that case that the Court of Chancery would not, on a motion for a preliminary injunction to restrain the National Docks Railway Company from constructing its railroad across the Central Railroad Company's land, inquire into the de jure existence of the former company as long as it had complied with all formal requirements and was a corporation de facto. The decision was put upon the ground that there was no jurisdiction in the Court of Chancery to determine "the legality of the existence of such a corporation.

The decision is not, however, authority for the broad proposition that the court will never, upon proceedings to condemn land, inquire into the legality of the corporation that seeks to condemn. We had already decided that the landowner was entitled to question the right to take his land without his consent (State, Morris & Essex R. R. Co. v. Hudson Tunnel R. R. Co., 38 N. J. Law, 548), notwithstanding a contrary view expressed in the Supreme Court (38 N. J. Law, 17). The right to inquire into the existence of the corporation de facto was conceded in the National Docks Case as it was by the Supreme Court in the present case, and we in fact determined the constitutionality of the General Railroad Law under which the National Docks Company had been organized. This was necessary and proper in order to determine whether it was a corporation de facto, for, if there was no law under which such a corporation could exist, the attempt to build across the Central Railroad property and to condemn the right so to do would be a mere usurpation. The court, however, went further and passed upon the question whether the general railroad law authorized the construction of a railroad lying wholly within one city. Apparently, if the court had construed the act adversely to the National Docks Railroad, it would have retained the injunction. In one sense this inquiry involved only the de facto existence of the railroad, since it might well be said it was an inquiry whether there was any statute under which a railroad of the character of the National Docks Railway could exist; but the inquiry, if determined adversely to the railroad, would determine also its de jure existence. It must often happen that a determination of corporate existence de facto involves necessarily the legal right to exist In De Camp v. Hibernia Railroad Co., 47 N. J. Law, 43, the Supreme Court considered whether an underground railroad having one terminus on private property without any outlet in that direction, and author-thorized by its charter to carry freight only, was incorporated for a public purpose so that it might condemn land. In Hampton v. Clinton, 65 N. J. Law, 158, 46 Atl. 650, the Supreme Court held that a water company under the act of 1876, which had not filed with its certificate the required consent in writing of the corporate authorities of the municipality, could not condemn land. In P....