Powell v. Sammons , 31 Ala. 552 ( 1858 )

HICE, C. J.

— It is settled, that a judgment for a sum of money cannot be rendered on the answer of a garnishee, against him, unless there is a distinct admission of a legal debt, either due, or to become due, by him to the defendant in the original suit, (Price v. Thomason, 11 Ala. R. 875; Mims v. Parker, 1 Ala. R. 421;) and that the only moneyed demands which can be reached by garnishment, are those which are of such a nature, that they might be recovered in an action of debt or indebitatus assump-sit. — Hall v. Magee, 27 Ala. R. 414; Nesbitt v. Ware & McClanahan, 30 Ala. R. 63; Mims v. Parker, supra.

It is also settled, that the garnishee may retain for any debt which he shows to be due to himself from the defendant in the original suit, or for any damages which he may show himself entitled to recover out of him, and which arise out of the same transaction or contract in respect to which the plaintiff in garnishment is seeking to make the garnishee liable. In respect to such debts or damages, the garnishee may protect himself to the same extent as he might if the suit was, in fact,.a suit against him in the name of the defendant in the original suit. Hazard v. Franklin, 2 Ala. R. 349, and cases cited supra; Bingham v. Pushing, 5 Ala. R. 403; Reps. of Thomas v. Hopper, ib. 442. A resort to the remedy of garnishment cannot deprive the garnishee of the benefit of recoupment, or of any like defense. — Faxon v. Mansfield, 2 Mass. Rep. 147; Peden v. Moore, 1 Stew. & Por. 71.

By the charter granted to the Central Plank-Road Company, by the legislature of this State, on the 30th January, 1850, (Pamph. Acts of 1849-50, pp. 268-272,) the company was invested with all the rights and powers necessary or required for the construction, continuation and keeping up a plank-road from Wetumpka to Gunter’s Landing, or suck other eligible point or place on the Tennessee river as might be selected. The president and directors of the company were authorized by the charter “ to agree upon and fix the rate of toll to be collected and received of any person or persons” who might travel on or use the said road, and to cause to be erected upon said road “ suitable gates for the detention of persons passing thereon until the toll required” had been paid. In the act of incorporation there was no clause reserving to the legislature the power to destroy by any subsequent statute any right legally vested in the company by its charter.

An act was passed at the session of the legislature of 1858-4, (Pamph. Acts of 1853-4, pp. 51-53,) the first four sections of which are, in substance, as follows:

Sec. 1. “ That, from and after the passage of this act, it shall be the duty of the judge of probate of each county in this State, through or into which any plank, macadamized or turnpike road may run, to appoint three discreet freeholders of the proper county, commissioners, who shall hold their offices for one year, and until their successors are appointed, and shall perform the duties hereinafter specified.

Sec. 2. “ That upon the application of any two freeholders or householders, any two of said commissioners shall proceed to examine the condition of any plank, macadamized or turnpike i’oad within their county; and if, upon such examination, it shall appear to said commissioners that any such road is out of repair, so as not to afford a safe and convenient transit for persons or freight over such road, it shall be their duty to throw open the toll-gates of such road, and, without delay, make return of such examination and action thereon, under oath, to the judge of probate of the proper county.

Seo. 3. “That whenever any proprietor or authorized agent of any road, which has been examined and declared out of repair, as provided for in this act, shall make application to such commissioners for that purpose, said commissioners, or any two of them, shall proceed to examine any such, road as has been rejjorted out of repair; and if, upon such examination, sunk road shall be found in proper-order and repair, they shall forthwith report that fact to the judge of probate, under oath; andas soon as such return shall be made by the commissioners, the proprietor or authorized agent of any such road shall be authorized to receive toll, as before, for passing over such road.

Seo. 4. “That if any gate-keepers, or other persons, after any such road is declared out of repair, as provided for in this act, and before- the- same has been examined and reported upon by the commissioners, shall charge or receive any toll from any person for passing over or upon such road, or upon any freight or produce carried over or upon such road, such gate-keeper or other person receiving or charging such toll shall be liable for five times the amount of such toll, and costs, to be recovered before any justice of the peace of the proper county; and in any such suit the plaintiff shall be a competent witness.”

Under color of these sections of the act of 1853-4, the gates of the company, erected and used for the detention of persons passing on the plank road until the toll' required had been paid, were thrown open. This throwing open of the gates is one of the facts or matters stated and relied on iu the answer of the garnishee; and thus it becomes our duty to pass- upon the constitutionality of those sections.

The legislative charter-to the Central Plank-Boad Company was accepted, and the company organized under it. It is a contract within the meaning of the constitution of the United States^ the obligation of which the legislature had no power to impair. The right of the company to receive and collect toll at their gates, erected in conformity to the charter, is a franchise, and is undoubtedly private prop erty. Among the means by which the company exercised and enjoyed their franchise, were their gates. The sections-- of the act of 1853-4, above copied, if valid, take away the franchise, or part of it, without compensation, without a trial by jury, without due process of law, and evidently impair the obligation of the contract, created by the charter,, between this State and the company. Beyond all question, these sections of that act are, as to the Central Plank-Road Company, unconstitutional and void. — Bank of the State v. Bank of Cape Fear, 13 Iredell, 75; New Orleans, Jackson and Great Northern R. R. Co. v. Harris, 27 Mississippi Rep. 517; Matter of Hamilton Avenue Brooklyn, 14 Barb. Sup. Ct. Rep. 405; Constitution of United States, Article I, § 10; Constitution of Alabama, Article I, §§ 10, 13, 28; Baugher v. Nelson, 9 Gill’s R. 299.

As these sections are unconstitutional and void as aforesaid, the throwing open the gates of the Central Plank Road-Company, under them, did not, per se, alter or affect the duties, rights or relations between the garnishee and that company, then existing and arising under or out of a valid contract previously made between them. The contract between the company and the garnishee, mentioned in his answer, and the obligations and rights of the parties under that contract, were not in the least changed or affected by the aforesaid throwing open of the gates.

One of the obligations implied by law from that contract, as set forth in the answer of the garnishee, was, that the company would keep their road, and every part of it, in good order for the period covered by the contract. If they did not keep every part of it in such order, their failure to do so was a breach of their contract, which could not be excused by the throwing open of their gates by the commissioners under the act of 1853-4 above cited. Another obligation of the contract was, that the stages of the garnishee, during the period covered by the contract, should not in any manner be obstructed or hindered by the company in running or passing on the road. Any such obstruction or hinderance was a breach of the contract. Any such breach of the contract on the part of the company gave to the garnishee the election to abandon the contract, or to hold on to the contract, and claim the damages resulting to him from such breach, and also a deduction from the contract price of so much as the running his stages on the road was worth less on account of such breaches. The company cannot be permitted to gain by their fault in violating the contract. — Hayward v. Leonard, 7 Pick. R. 181; Dubois v. Delaware & Hudson Canal Co., 4 Wend. R. 285; Jewett v. Weston, 11 Maine R. 846; Smith v. Smith, 1 Sandf. S. C. R; 206; Liggett v. Smith, 3 Watts’ R. 331; Thornton v. Place, 1 Moody & Rob. 218; Ritchie v. Atkinson, 10 East’s R. 296; Taft v. Montague, 14 Mass. R. 282; 2 Greenl. on Ev. § 104.

It seems from the answer of the ■ garnishee, that before the period covered by the contract had expired, the company abandoned the road, and had no agent on the road to receive or claim toll. After such abandonment, and during its continuance, the company is not entitled to recover toll, unless under an express contract. The law will not imply a promise to pay toll on the part of a person passing on the road, during such abandonment. By accepting the charter, an obligation was cast upon the company to provide agents, and keep them on the road ready to" receive toll from all who were ready and willing to pay it. It is essential to their right to toll, upon the idea of an implied contract to pay it, that they should first furnish to persons using the road this easy and convenient opportunity for paying it.

The counsel for the appellee contends, that the charter conferred on the company “ an unlimited power as to tolls.” It is not absolutely necessary, in this case, for us to decide that question. But we wish to be understood as not assenting to the position taken by the counsel. Such franchises are restrictive on the public; and, when they are granted in such general terms as are employed in the charter shown in this case, the words are to be construed most strongly in favor of the public. We cannot think the legislature intended by the' words employed, to confer upon the company the power to fix an unreasonable rate of toll, or to collect unreasonable toll. The charter does not express any such intention. Many charters confer, in general terms, the power to pass by-laws; yet the courts have often pronounced by-laws void, because they were unreasonable. Why may not the courts exercise a similar power, in case palpably unreasonable toll is demanded ? — See Wales v. Stetson, 2 Mass. Rep. 143; Chadwick v. Moore, 8 Watts & Serg. 49; Baugher v. Nelson, supra; Islington Market Bill, 3 Clarke & Fin. 513; 2 Wend. Bl. Com. 38, note, (53.)

We have said enough to show that the judgment of the court below is erroneous, and prejudicial to the garnishee. The views above expressed will probably enable the court below to determine what judgment should he rendered upon the answer, in case the contest pending upon it shall be decided in favor of the garnishee. The pendency of that contest is enough to prevent us from rendering the proper judgment on the answer. All we can do, is to reverse and remand.

Judgment reversed, and cause remanded.