The People vs. The Rensselaer and Saratoga Rail Road Company, 15 Wend. 113

By the Court, Savage, Ch. J. In support of the first objection taken on behalf of the people, it is argued that it is not enough for the defendants to aver in their plea that by virtue of the act of -1832, they are created and constituted a body . . . corporate and politic in fact and in name ; but that they should aver a compliance with the requirements of that act, and also with the general act relating to corporations, and shew a performance affirmatively of those acts which were necessary to authorize them to organize and act as a corporation. The case of The King v. Amery, 2 T.

R. 515, is cited as an authority on this point, but I am not able to perceive that the decision in that case turned upon that question. The information was filed against the defendant as an individual for exercising the office of alderman of the city of Chester. He pleaded a charter granted by Charles II, and that he was regularly elected an alderman under that charter. The prosecutor took issue upon these facts ; and also put in two special replications ; 1. That the mayor, &c. were removed by the king by virtue of a power for that purpose reserved in the charter; and 2.

That the attorney general filed an information against the corporation charging them with usurpation, and that such proceedings were had that judgment quosque was entered by default; and that a subsequent charter was granted by James II, in October, 1688, restoring the city of Chester to its ancient privileges, which was accepted by the mayor and citizens, whereby the charter of Charles 2d became void. To the 2d replication the defendant rejoined, that judgment of Seizure was rendered against the old corporation in the reign of Charles 2d, whereby the corporation was dissolved long before the charter by James 2d.

Issue was joined, and on trial the jury found, among other things, the charter of Charles 2d as in the defendant’s plea, and that the defendant was duly elected by that charter ; that the order of removal of James 2d was duly signified to the citizens and inhabitants, and that there was no final judgment upon the quo warranto. A motion was made to deliver the postea to the defendant, that he might enter judgment thereon. The argument in that case contains much learning on the subject of proceedings against corporations; but it is not necessary to go at large into it.

It was urged on the part of the prosecution that there are but two sorts of proceedings against a corporation ; 1. When a ' corporation legally created abuse any of its franchises, or usurp others which do not belong to it, then the information should . . be against the corporation as such, and in such cases the jU(jgment, against it is a judgment of seizure; but when a body of men assume to be a corporation, and the information is brought for usurpation, it cannot be brought against them by their corporate name, but as individuals; and in such case there must be a judment of ouster.

On the other hand, the opposite doctrine was maintained, and Ashurst, justice, in giving the opinion of the court, says that the information called upon the mayor and citizens to show by what authority they claimed to be a corporation ; non constat by that information that there was any corporation in Chester. The information imports the contrary, for it charges them with having usurped the name, privileges and authority of a corporation, without any legal right.

He says if any charter or prescription existed, it was incumbent on the defendants to have appeared and shewn it; and by not doing so, they admitted that there was neither charter nor prescription to warrant such usurpation. This is the whole point of the decision in so far as it is applicable here; and all it proves is, that the informar tion is regular in proceeding against the defendants by their corporate name ; but it does not prove that the defendants should do more in their plea than to claim title under their charter.

It is not adjudged that the defendants should aver any acts of theirs under the charter to effecttheir incorporation. The question as to the form of the plea in a quo warranto does not appear to have been much discussed in the cases in this court. In The People v. Niagara Bank, 6 Cowen, 196, and the two following cases, informations were filed against corporations ; and the allegation was made, that without any warrant, grant or charter, they used certain privileges and franchises, to wit, that of being a body politic and corporate in law, fact and name, &c.

To this charge the defendants answer, that by a certain act of the legislature; (setting out the title of their act of incorporation,) they were ordained, constituted and declared to be a body corporate and politic, in fact and in name ; but they do not state the acts which were necessary to be done; such as the opening of books of subscription by commissioners ; the subscription by the stockholders ; the apportionment of the stock and the election of directors. , . .

JNI o exception was taken to the plea on this ground, and therefore the approbation by the court of this general mode of pleading ought not, perhaps, to be considered a positive authority in favor of it. Neither do the cases brought by corporations upon contracts prove much on this point. In the case of the Bank of Auburn v. Aikin, 18 Johns.R. 31, the defendants had pleaded nul tiel corporation, to which the plaintiffs replied that they were a corporation. The court said the replication was bad ; the plaintiffs should have shewn specially how they were a corporation.

Of this case it may be said, that the decision founded on the authority of 1 Kidd, 284, does not give any precise rule, farther than an intimation that there should have been an averment of the performance of those acts which were to be done before they could be a corporation. In Wood v. Jefferson Co. Bank, 9 Cowen, 194, such a replication was put in to a plea of no corporation, and more was averred than was necessary. It was held that the corporation were not bound to prove the unnecessary averments.

It was there intimated that upon the plea of the general issue it was necessary to prove that every thing had been done which was necessary to be done before the incorporation became complete; but subsequently, in The Utica Ins. Co. v. Tillman, 1 Wendell, 555, it was held that a corporation plaintiffs need only prove their charter and acts of user under it; and such is the rule now in this court.

If a corporation, when proceeded against, is not bound to prove more than when they sue as plaintiffs, it would not now be necessary to provemore than is averred in the plea pleaded in this case ; and from the course of pleading adopted and approved of by the court, in the cases of The People v.

Niagara Bank, and the other cases in 6 Cowen, it would seem that the plea is sufficient, and that it is competent for the attorney general to reply any matter which would shew a failure on the part of the corportion to comply with the requirements of the act creating them; On this point, however, it does not seem necessary to give any definite opinion, because the revised statutes seem to have regulated the proceedings in such cases, and to have .adopted the suggestions of the counsel for the crown, in the case of The King v. Amery,as the correct mode of proceeding.

Those statutes provide that an information in the nature of a quo warranto may be filed against individuals in several cases; one of which is,“When any association or number of persons shall act within this state as a corporation, without being legally incorporated.” 2 R. S. 581, § 28,sub.3.

And a similar information may be filed against any corporate body in several cases, when such corporation shall offend against their charter, or any act of the legislature affecting it; or shall have done or omitted any ac.t which shall operate as a forfeiture by misuser, or nonuser, or a surrender; or when it shall exercise any franchise not conferred by law. 2R. S. 583, § 39. By §48 and 49, p. 585, the nature of the judgment to be rendered is different in the two different modes of proceeding.

Whenever individuals or a corporation shall be found guilty, either of usurping or intruding into any office or franchise, or of unlawfully holding, judgment of ouster shall be rendered, and a fine may be imposed; but where the proceeding is against a corporation, and a conviction ensues for misuser, nonuser or surrender, judgment of ouster and of dissolution shall be rendered: which is equivalent to judgment of seizure at common law.

If, therefore, the information in this case'had for its object to oust the defendants from acting.as a corporation, and to test the fact of their incorporation, it should have been filed against individuals; if the object was to effect the dissolution of a corporation which had had an actual existence, or to oust such corporation of some franchise which it unlawfully exercised, then the information is correctly filed against the corporation. The distinction is well exemplified by Sir Robert Sawyer, in The King v. The City of London, cited in 2 T. R. 522.

He says the rule is this : when it clearly appears to the court that a liberty is usurped by wrong, and upon no title, judgment only of ouster shall be entered. But. when it appears that a liberty has been granted, but has been misused, judgment of seizure into the king’s hands shall be given. The reason is given : that which came from the king is returned there by seizure; but that which never came from him, but was usurped, shall be declared null and void.'^Judgment of ouster is rendered against individuals, for unlawfully assuming to be a corporation.

It is rendered against corporations for exercising a franchise not authorized by their charter. In such case the corporation is ousted of such franchise, but not of being a corporation. Judgment of seizure is given against a corporation for a forfeiture of its corporate privileges. The information in this case is therefore not the proper proceeding to call in question the corporate existence of the defendants ; but in so far as it seeks to oust the defendants from the exercise of any franchise not granted to them, it is appropriate.

When, therefore, an information is filed under the revised statutes against a corporation by its corporate name, the existence of the corporation is admitted ; or rather, that it once had legal existence. This brings me to enquire whether the defendants have the right to build a bridge across the Hudson river at Troy, as a part of their rail road. The first

section of the act incorporates Stephen Warren and such other persons as should thereafter become stockholders, and creates them a body corporate and politic, by the name of “The Rensselaer and Saratoga Rail Road Company,” for the purpose of constructing a single or double rail road or way from some proper point in the city of Troy, in the county of Rensselaer, passing through the village of Waterford, in the county of Saratoga, to the village of Balston Spa, in said county of Sara-toga. The 13th

section declares that it shall not be lawful for the said rail road company to erect any bridge across the Hudson river within two miles of the place where the bridge belonging to the president and directors of the Union Bridge Company is erected, betwoeneLansingburgh and Waterford.

From these two sections it is clear that the rail road to be constructed from Troy to Ralston Spa, passing through the village of Waterford, must cross the Hudson river ; and the clause prohibiting the company from erecting a bridge within two miles of the Union Rridge implies an authority to erect one any where, in the most direct route from Troy to Waterford, more than two miles from the Union Bridge.

If the court can be supposed to have afiy knowedge of these localities, either personally, or from public statutes, it must be very clear that a bridge crossing the Hudson, in the route from Troy to Waterford, must be located south of the Union Bridge ; and there is nothing in the charter to prevent the company from erecting such bridge directly from a point in the city of Troy to Green Island, as a part of the rail road ; and we are, on this occasion, at liberty to infer that the location is not objectionable ; otherwise that fact would have been shewn by replication.

Had the company built a bridge below the city of Troy, in the direction of the city of Albany, it would, prima facie, not be such a bridge as is contemplated by the charter. In this case it is averred to be in the direct route of such rail road. If there is in the charter no limitation of the authority thus given, the right of the defendants is indisputable. The 13th

section already referred to does contain a limitation or qualification as to the manner in which streams are to be crossed, W henever it shall be necessary, for the construction of their rail road, to cross any stream or water course, it is declared to be lawful for the company to cross the same ; “but the corporation shall restore the stream or water course, or road, street or highway thus intersected, to its former state, or in a sufficient manner not to have impaired its usefulness.” The defendants, in their plea, claim the right of building a bridge as part of there rail road, and for that purpose of laying abutments and piers in the river, and of placing timbers thereon ; but leaving, over the channel, an opening for a draw, to enable vessels to pass and re-pass the same, “ so as to restore the said river to its former state, or in a sufficient manner not to have impaired its usefulness as a public navigable river.” This allegation in the plea is in the words of the statute, and is a strict and literal compliance with it.

It is also sufficiently explicit to have enabled the plaintiffs to have taken issue upon it, if they had chosen to do so. The plea therefore, contains a full answer to the information, and is good, in form and substance. The people of the state of New York are the plaintiffs in this case, and by this proceeding have called upon the defendants to show by what authority they assume- to do certain acts. It would, in ordinary cases, be sufficient for the defen dan ts to show that their acts are authorized by the authority of law and of the plaintiffs.

Such an answer, I think, is sufficient in this case; and the defendants can only be properly called upon to answer to some persoñ or persons entitled by a licence to navigate the river, to compensate in damages for obstructing the navigation, or by some other proceeding on the part of such persons to abate the nuisance, if the bridge is such.

As, however, the opinion of the court seemed to be desired by both parties upon the constitutionality of the law, if it authorized the erection of the bridge, and as that question was ably and elaborately argued by counsel on both sides, it cannot be improper briefly to express an opinion on the constitutional question.

By the constitution of the United States, art. 1, $8, sub. 3} “ The congress shall have power to regulate commerce with foreign nations and among the several states, and with the Indian tribes ; ” and by sub. 17, “ To tpake all laws which shall be necessary for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” In February, 1793, congress passed “

an act for enrolling and licencing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same.” It has been decided, in the case of Gibbons v. Ogden, 9 Wheaton, 1, that congress has the exclusive power of regulating commerce among the several states; that congress has power also to regulate navigation in the .waters of the United States, which are also the waters of individual states; and that the statute of 1793 authorizes vessels licensed under it to carry on the coasting trade. In the case of The Steamboat Company v.

Livingston,3 Cowen,713, it was decided that the coasting trade means commercial intercourse carried on between different districts in different states ; between different districts in the same state, and betwen different places in the same district, on the sea coast or on a navigable river. There can be no doubt, therefore, that the coasting trade may be carried on beyond the bridge in question.

The information charges that the Hudson river, from the ocean to the city of Troy, and above it to the villages of Lansinburgh and Waterford, is an arm of the sea in which the tide ebbs and flows, anc¡ for forty years has been used in carrying on commerce, in pursuance of the laws of the United States. The place, therefore, where the bridge is built, is one which coasting vessels havea right to pass, and where any obstruction entirely preventing or essentially impeding the navigation would be unlawful.

It is, however, a proposition not disputed, that but for the power granted by the constitution to congress, the state legislatures would have as full and entire control over the waters of their several states, as they have over the land. It follows, therefore, without the declaratory amendment to that effect, that the states reserve all power not granted to congress. The entire sovereignty over the waters of the states, then, vests in congress and the several state legislatures.

If this entire sovereignty rested in one government, it could not be doubted that such government might authorize the erection of a bridge across navigable waters, if the business and intercourse of society required such an accommodation. The only objection to the exercise of such a power might be, that the injury to navigation might exceed the benefits to be derived to society otherwise than from such an accommodation ; and on that point the sovereign pow'er must be the judge.

It is for the legislature, and the legislature alone, to judge of the expediency of exercising any of its acknowledged powers in any given case. I think I may safely say, that a power exists somewhere to erect bridges over waters which are navigable, if the wants of society require, them, provided such bridges do not essentially injure the navigation of the waters which they cross. Such power certainly did exist in the state legislatures, before the delegation of power to the federal government by the federal constitution.

It is not pretended that such a power has been delegated to' the general government, or is conveyed under the power to regulate commerce and navigation ;' it remains, then, in the state legislatures, or it exists no where. It does exist, because it has not been surrendered any farther than such surrender may be qualifiedly implied—that is, the power to erect bridges over navigable streams, must be considered so far surrendered as may be necessary for a free navigation upon those streams.

By a free navigation must not be understood a navigation free from such partial obstacles and impediments as the best interests of society may render necessary.

For example—a vessel arrives at the port of New York from a for- . . eign port; congress has the exclusive power to regulate commerce and navigation with foreign nations ; the vessel arrived has sailed under the authority of the laws of congress, but she is met at the quarantine ground—not by a bridge with a draw which she may pass in half an hour, but by a mandate from the state authorities, stating in substance that the conveniences or necessities of the people of the port which the ship is approaching, require that she shall remain at quarantine one, ten, or twenty days, according to circumstances—is such a detention unconstitutional ?

It has never been pre- - tended. The contrary has been expressly adjudged, as far as that point could be adjudicated in the case of Gibbons v. Ogden.

Chief Justice Marshall says, 9 Wheaton, 203, “ Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c. are component parts of this mass.” He had just spoken of “ that immense mass of legislation which embraces every thing within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states themselves.” It is here conceded that inspection laws, quarantine laws, health laws, laws regulating internal commerce, laws which respect turnpike roads and ferries, are constitutional, and are of course no infringement of the powers granted to the general government.

The chief justice adds an “&c.” after the word ferries, implying that there were other subjects of a similar nature in his mind, which it was unnecessary to specify—and what is more analogous to a ferry than a bridge, for which a ferry is but a substitute ? I have already stated that the general government and the state government, between them, possess the sovereign power ; and the sovereign power may doubtless build bridges where necessary. It has been correctly said that the federal constitution is a grant of power, while the state constitutions are limitations of power.

There is in our state con-situation no limitation of the power to build bridges, and there is in the federal constitution no grant of such a power. There can be no question, therefore, that the state legislature has the power to build bridges where they shall be necessary for the covenience of its citizens. The right must be so exercised, however, as not to interfere with the right to regulate and control the navigation of navigable streams.

Both governments have rights which they may exercise over and upon navigable waters; and it is the duty of both so to exercise their several portions of the sovereign power, that the greatest good may result to the citizens at large.

It is the right and the duty of the general government to adopt such measures that the commerce and navigation of the country shall not be improperly obstructed ; and it is the duty of the state governments to afford their citizens all the facilities of intercourse which are consistent with the interests of the community, and which shall not obstruct the powers granted to the general government. It fortunately happens, that in the particular case now under consideration there is no necessity for collision. The maxim “sic utwre tuo ut alienum non loedas” is the rule for both governments.

A bridgejwith a draw, which shall be opened free of expense for every vessel sailing under a licence as a coasting vessel, affords all the accommodations necessary for citizens in the vicinity or for travellers, and does not impede the navigation in any essential degree. The case of Wilson v. The Black Bird Creek Marsh Company, 2 Peters, 245, has been cited and relied on by the counsel on both sides as an authority having a bearing upon this case.

The company sued Wilson and others in the supreme court of the state of Delaware, in an action of trespass, for breaking a dam erected by them, by the authority of the legislature of that state, across the Black Bird creek—a navigable stream which flowed through a marsh on the banks of the Delaware river.

The defendants pleaded that the place where the trespass was committed was part of Black Bird creek—a public and common navigable creek in the nature of a highway, in which the tide flowed and' re-flowed ; that they, with their sloop, which was regularly licensed and enrolled according to the laws of the United States, sailed in and upon the creek ; and because the dam had been unlawfully erected, and obstructed the navigation of the navigable creek, therefore they tore it up, doing no unnecessary damage. The plaintiffs demurred, and the supreme court sustained the demurrer and gave judgment for the plaintiffs.

The court of appeals affirmed the judgment. The defendants brought a writ of error to the supreme court of the United States. Mr. Wirt, who argued for the Black Bird Creek Marsh Company, admitted that the creek was navigable and a public highway, but insisted that the legislature of a state may stop a highway. He contended that the stream in question remained under state control, and was not subject to the laws of congress regulating commerce; that there had been no legislation by congress, with which the company had interfered.

Chief Justice Marshall says, “ The measure authorized by the act stops a navigable creek, and must be supposed to abridge the rights of those accustomed to use it. But this abridgement, unless it comes in conflict with the constitution or laws of the United States, is an affair between the government of Delaware and its citizens, of which the supreme court can take no cognizance ; that if congress had passed any act regulating commerce in those creeks, the court would feel no difficulty in saying that a state law, conflicting with the law of congress, would be void.

He says expressly that the power of congress had not been so exercised as to affect the question, and on that ground affirmed the judgment of the state courts. 1 confess I do not see why the law of congress did not have an operation, if the vessel was navigating under a coasting licence, and was making a voyage for commercial purposes from one place to another in different districts, or in the same district. But we have no concern with the propriety of the decision, so long as the principle is clearly avowed upon which it was decided.

According to that principle, the defendants in this case would have no right to build an impassable dam where they have erected a draw-bridge. The Hudson river is .admitted by the pleadings to be a public navigable river ; it is of course subject to the navigation laws of congress, and the bridge can only be justified upon the principles which I have previously endeavored to maintain. There is a material distinction between a draw-bridge, which detains a vessel for Qn|y a s]lort time, and a dam which stops the navigation entirely.

The bridge in question with a draw is no greater obstruction than the dam erected by the state a short distance J north of the bridge, but still south of the villages of Lansing-w.LvLmi That dam would be an illegal ob-burgh and Waterford. fc>a So would struction but for the lock by which vessels pass it. the bridge without a draw ; but having a draw, it is no greater obstruction than the dam with a lock. The dam was built by state authority, to facilitate the internal commerce of the state. So is the bridge to facilitate internal communications and intercourse—both peculiar objects of state legislation.

Instances of bridges over navigable waters are very numerous. There are such bridges in the vicinity of Boston, and there is one in the district of Columbia, between Alexandria and Georgetown. Neither the federal government nor the federal judiciary have shown any disposition to act otherwise than with all proper.liberality, in the exercise of the powers granted ; nor can they be justly charged with an inclination to encroach upon the reserved powers of the states.

It is not, I apprehend, for the state authorities to go in advance of the federal government, in making a surrender of powers not claimed by the federal government, and which, if surrendered, cannot be exercised at all. In the present case it must be remembered that neither the general government, nor those claiming rights under them, have contested the right to build a draw bridge at Troy. Those who represent the people of the state of New-York raise this objection to a law passed by their own representatives.

I hope I have said enough to vindicate the legislature from any attempt to exercise powers which do not belong to them, and to show that the act to incorporate the Rensselaer and Saratoga Rail Road Company is far from any constitutional objection. Judgment for defendants on demurrer.