State v. Godwinsville & Paterson Macadamized Rd. Co.

• Decision Date: 28 February 1887
• Citation: 10 A. 666,49 N.J.L. 266
• Court: New Jersey Supreme Court
• Parties: STATE v. GODWINSVILLE & PATERSON MACADAMIZED ROAD CO.

10 A. 666

49 N.J.L. 266

STATE

v. GODWINSVILLE & PATERSON MACADAMIZED ROAD CO.

Supreme Court of New Jersey.

February, 1887.

On case certified from court of oyer and terminer, Passaic county.

J. W. Griggs, for the company. W. B. Gourley, contra.

VAN SYCKEL, J. The defendant company was indicted by the grand jury of Passaic county, at the April term, 1883. The indictment sets forth that said company was incorporated by an act of the legislature of this state, passed in 1867, by which the said company was vested with the power to lay out and construct a turnpike road between certain points therein specified; that the said act expressly provided that "at least sixteen feet in width of the said turnpike should be sufficiently macadamized, or bedded with stone not less than eight inches in depth, and be faced with gravel or other material to make a solid, firm, and even road at all seasons of the year;" that said company might, under certain conditions in said charter prescribed, erect gates across said road, and demand and receive tolls from travelers over said road at certain rates therein specified; that said act also provided that if the said turnpike road should not be commenced by said company within three years, and completed within six years, from the passage of said act, then and in that case the said act should be void; that in the year 1869 the said company laid out and constructed a road between the points aforesaid; that in the year 1868 a supplement to the aforesaid act was passed by the legislature, whereby it was enacted that the time for completing the said road of said company, by macadamizing the same, should be extended to six years from the second day of April, 1868: that in 1872 a further supplement was passed, whereby it was enacted that so much of the charter of said company as required "said road to be bedded with stone eight inches in depth should be repealed;" that by virtue of the said acts of the legislature the said company, in 1869, erected gates across the said road, and demanded and received tolls from all persons riding or driving horses, carriages, or cattle over said road, and has continued so to demand and receive tolls; that by virtue of said act it was the duty of said company, on or before the second day of April, 1874, to complete the said road by sufficiently macadamizing the same, or bedding the same with stone, for 16 feet in width, in accordance with the provisions of the aforesaid acts of the legislature.

And the said indictment sets forth the offense imputed to the said company in the following language: "That the said company, disregarding its said duty, did not at any time during said period of six years last above mentioned, and hath not at any time thereafter, completed said road of said company by sufficiently macadamizing the same, or bedding it with stone, in accordance with the provisions of said acts above recited; but, on the contrary, on the first day of June, A. D. 1881, and thereafter continuously until the taking of this inquisition, in the said township of Manchester, have unlawfully omitted, neglected, and refused to comply with the said provisions of said act, or to macadamize said road, or to bed the same with stone, and have, during all the term last aforesaid, kept and maintained the said road in a soft, miry, and rough condition, the said road not being macadamized or bedded with stone in any manner whatsoever, to the great damage and common nuisance of all the citizens of this state, contrary to the form of the statute in such case made and provided, and against the peace of this state, the government and dignity of the same."

The defendant demurred to this indictment, whereupon the court of oyer and terminer certified to the supreme court the issue joined on demurrer, for the advisory opinion of said supreme court as to whether upon the pleadings, and under the charter of the said defendant company, and the supplements thereto, judgment should be rendered for the state or for the defendant.

A prior indictment was found against the defendant company for illegally erecting and maintaining gates across the said highway. The state insisted that the company had not performed the conditions annexed to the grant of the franchise, and that such conditions were precedent to the right to erect the gates complained of. This case was likewise certified to this court. Mr. Justice Magie delivered the opinion, in which it is held that the supplement of 1872 was intended either as an acknowledgment by the legislature that the conditions precedent to the right to exact tolls, imposed by the previous legislation had been performed by the company, or that their performance had been waived. State v. Godwinsville & Paterson Macadamized Road Co., 44 N. J. Law, 496. This is relied upon by the defense as an adjudication that the company, by the supplement of 1872, is wholly discharged from the duty of macadamizing the said highway. I do not understand that to be the effect of the decision.

The original charter of the company required that, before tolls were taken, "at least sixteen feet in width of the said turnpike should be sufficiently macadamized, or bedded with stone not less than eight inches in depth, and be faced with gravel or other material, to make a solid, firm, and even road at all seasons of the year." The first section of the supplement of 1872 reads as follows: "That so much of the eighth section of the act to which this is a supplement as requires said road to be bedded with stone eight inches in depth be, and the same is hereby, repealed." It seems very clear that this legislation does not relieve the company from the obligation to macadamize the highway. The eighth section of the charter requires—First, that at least sixteen feet in width of the road shall be macadamized or bedded in a certain way,— that is, with stone not less than eight inches in depth; second, that, when macadamized, it be faced with gravel or other material; third, that it be made solid. Arm, and even at all seasons of the year. The first section of the supplement of 1872 simply dispenses with the necessity of bedding with stone "eight inches in depth;" it does not justify the inference that the entire duty cast upon the company by the prior law had been waived. On the contrary, the relief from a clearly-defined portion of the previously imposed work is a recognition of the obligation to perform the balance. Pull effect will be given to the first section of the supplement of 1872 by striking out of the eighth section of the charter, the words "bedded with stone not less than eight inches in depth." The eighth section, thus amended, will read as follows: "That at least sixteen feet in width of the said turnpike shall be sufficiently macadamized, and be faced with gravel or other material, to make a solid, firm, and even road at all seasons of the year." That language measures and defines the duty which rested upon the company after the passage of the act of 1872. It was held in the case in 44 N. J. Law that the road need not be completed as a condition precedent to the right to erect gates; but it will be seen, by reference to the opinion of the court, that the decision is based...