Darnell v. State , 48 Ark. 321 ( 1886 )

Cockrill, C. J.

The appellants enjoyed a corporate franchise under a charter framed under the general act of January 8, 1851 (see acts 1850-1, p. 85), to take tolls from a turnpike road and a ferry connected with it over the Ouachita river. The charter was annulled by a judgment of the circuit court upon an information in the nature of quo warranto, filed by the attorney general on behalf of the state.

The cause was tried by the court without a jury. No declarations of law were asked and none were given; none of the evidence was objected to and a new trial was not asked. The bill of exceptions set forth the evidence adduced on the trial — nothing more. The court found as a fact that no effort had been made to keep the road up as required by the charter, for more than five years next before the institution of this proceeding, and that the road had never been kept in any better condition than the ordinary county dirt roads; and thereupon gave judgment annulling the charter and forfeiting to the state the franchise previously enjoyed by the corporation.

Upon this state of record, the only question presented by the appeal is this: concluding as we must, the facts to-be correctly found, does the effect given to them by the-judgment of the court legally follow? Smith v. Hollis, 46 Ark., 17.

l. Corpok-ATIONS: Misuser: '

It is a tacit condition annexed to the creation of every # # ° corporation that it is subject to dissolution by forfeiture of its franchise for willful misuser or non-user in regard to-matters which go to the essence of the contract between it and the state, and the proceeding here adopted is the-proper mode of trying the issue. State, v. Real Est. Bank, 5 Ark., 595 : Smith v. State, 21 ib., 294; State v. Leatherman, 38 ib., 81; Truett v. Taylor, 9 Cr., 43; Mumma v. Potomac Co., 8 Pet., 287; Atty. General v. C. R., 6 Wend., 461.

2. Quo wnvt'ctnto.

It is the very substance of the duty a turnpike company assumes when incorporated, to construct and maintain its roads in substantial compliance with its charter requirements. The charter in this case specified how the-road should be constructed and maintained — its width, the-height of the road-bed, and the drains being specifically designated. The court found upon the issue of fact that these-requirements had been persistently disregarded for a period of more than five years. This long-continued neglect indicates a degree of willful non-feasance that justifies a. revocation of the franchise. State v. R. & W. Turnpike Co., 11 Vt., 431; People v. Turnpike Co., 23 Wend., 253; State v. Turnpike Co., 1 Zab., 9.

3. Ferry.

2. It was probably the intention of the charter to establish tbe ferry merely as an incident to the turnpike in order to render travel over it feasible. The privilege of maintaining the ferry would, in that event, fall with the revocation of the turnpike franchise.

If the charter was designated to confer the independent privilege of maintaining a ferry, as the information alleged and the circuit judge seems to have supposed, it went beyond the powers conferred by the act under which it was drafted, and an attempt to exercise the privilege under it would have been a usurpation of right. The power to grant ferry privileges was then, as now, vested in the county courts, and there is nothing in the act of 1851 indicating an intention to interfere with this power or to place it elsewhere.

:. Same.

If then, the corporation was attempting to exercise a franchise under its charter to which it was not legally entitled, the information was the correct remedy to reach the usurpation, and the judgment of ouster is right. High Ex. Bern., see 650.

In any view the judgment is correct and is affirmed.