NOVEMBER TERM, 1886 . 321 Darnell and Others v. State. DARNELL AND OTHERS V. STATE. 1. CORPORATIONS J Misuser. Forfeiture of franchise. In the creation of every corporation there is a tacit condition that the franchise may be forfeited for willful misuser or non-user in regard to matters which go to the essence of the contract between it and the state. 2. SAME • Proceedings to forfeit. Quo warranto. An information in the nature of a quo warranto is the proper proceeding against a corporation to forfeit its franchise for misuser or nonuser, or to oust it from the exercise of a franchise under its charter to which it was not legally entitled. 3. FERRY: How franchise obtained. A ferry franchise can be obtained only from the county court, and not by charter under the general incorporation act; and to operate a public ferry under a charter and without authority of the county court, is a usurpation that may be abated by quo warranto. 4. SAME: When annexed to turnpike: When a ferry is maintained as an incident to a chatered turnpike to facilitate travel over it, the forfeiture of the turnpike franchise carries with it the privilege of maintaining the ferry.
SUPREME. COURT OF ARKANSAS, Darnell and Others v. State. APPEAL from Ouachita Circuit Court. Hon. B. F. ASKEW, Judge. Barker & Johnson, for appellants. Quo warranto does not lie for every imaginary evil. This court cannot go beyond what is alleged in the complaint, to see if the state has suffered from misuser or nonuser of the charter. And as the complaint fails to charge that appellants, and those under whom they claim, had so misused their charter as to permit the pike to fall into decay and render it dangerous and inconvenient to travelers, this court should reverse the judgment. 23 Wend., 222; 15 ib., 130-1; 9 ib., 278 et seq. Mere neglect to fulfill all the requirements of a charter, nor the charging of illegal tolls, will vacate it ; courts may abate the obnoxious charges, and compel a specific performance of the charter. The state may waive a forfeiture of a charter, and it is generally its duty to do so, where the infraction is not willful. 5 Ark., 595; 23 Wend., 237; 9 Am. and Eng. Ry. Cas., 550-1; Angel & A. on Corps., secs. 743-6-7. When a penalty is authorized by, and included in the charter, it must be inforced before the state can inquire into non-user or misuser, by quo warranto. 10 Ark., 156. The information should have been quashed on demurrer, becauSe it failed to state who was ever injured on account of either misuser or non-user, after having stated that one cause for preferring the information was the injury to persons.. Ang. & A. on Corp., sec. 757 ; 9 Wend., 351, 373. If appellants were guilty of violation of their charter, they were liable under sec. 509, Mansfield's Digest. See High, Ext. Rem., sec. 649; 10 Ohio, 555 ; 2 John., 190. Appellants having invested their time, means and labor
NOVEMBER TERM, 1886. 323 Darnell and Others v. State. in this enterprise, and appellee having quietly stood by and acquiesced in their thus obtaining a vested right, ap-pellee is now estopped from seeking to divest them of that right. 20 Ark., 566; 23 ib., 514; 36 ib., 466. The action is barred by limitation. Secs. 4448 and 5677, Mansf. Dig.; High on, Ext. Rem., sec. 692; 38 Ark., 81 ; 10 Wend., 363 ; Ang. & A. on Corp., secs. 743 to 747. Quo warranto will not lie after twenty years peaceable enjoyment of a franchise. H. G. Bunn and Jones & Martin, for appellee. 1. There was no motion for a new trial filed, and the issues of fact cannot be disturbed by this court. 39 Ark., 482; 38 ib., 216. 2. Quo warranto is the proper proceeding to revoke a charter for non-user or misuser. 31 Ark., 27. 3. The statute of limitations does not run against the state. C00KRILL, C. J. The appellants enjoyed a corporate franchise under a charter framed under the genera] 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. Tbe 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 tbe 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
:324 SUPREME COURT OF ARKANSAS, Darnell and Others v. State. 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 tbe 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: including as we must, the facts to be correctly found, does the effect given to them by the judgment of tbe court legally follow '? Smith v. Hollis, 46 Ark., 17. 1. CORPORATIONS: Misuser: Forfeiture. 2. Quo warranto. It is a tacit conditio annexed to the creatio nof 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.,- 291; State v. Leather-man, 38 ib., 81; Truett v. Taylor, 9 Cr., 43; Mumma V. Potomac Co., S Pet., 287; Atty. General v: C. R., 6 Wend., 461. 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, tbe 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-ocntinued 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
NOVEMBER TERM, 1886. 395 v. Turnpike Co., 23 Wend., 253 ; State v. Turnpike Co., 1 Lab., 9. 3. Ferry. 2. It was probAly the intention of the charter to establish the 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 y evocation 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. 4. S'ame. 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. Rem., sec. 650. In any view the judgment is correct and iS affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.