People ex rel. Clausen v. Newburgh & Shawangunk Plank Road Co. , 30 N.Y. Sup. Ct. 173 ( 1880 )

Dykman, J.:

The defendant was incorporated April 18, 1850, by special act, with thirty years for a term of existence. It claims to exist now by proceedings taken on April 17, 1880, under chapter 611, Laws of 1875. If the act has no application we need not examine the regularity of the proceedings. Whatever they were, and however taken, they cannot effect their object. What force the law of 1875 had, when passed, need not be studied. If it applied to plank road companies, it was so far repealed by chapter 135, Laws of 1876. This law provided a method by which such companies, if about to expire by limitation of corporate existence, can renew their charter, to wit, by permissive resolution of the supervisors of the county; and then proceeds section 5 : “ The corporate existence of such plank road company shall not be extended except in accordance with this act.” Chapter 253 of Laws of 1879, makes the law of 1876 applicable to Orange county.

It is claimed the words “ such plank road company ” in section 5 of the law of 1876, limit the operation of that law to a class of companies of which the defendant is not' one. The law of 1876, by the terms of section 1, applies to any plank road company organized under the general act of 1847. This is the very class to which the defendant does belong. The act of May 6, 1880 (ch. 187), must be examined if it could apply to the defendant. It became a law May 6, 1880.

Section 1 begins : “ Any existing corporation.” To validate proceedings taken April 17, 1880, to extend a corporate existence, which, without them, would expire April 18, 1880, a retroactive effect must be given this statute. There are no express-words of retrospection. Is there a certain unequivocal intent that this law .should so operate? (Dash v. Van Kleeck, 7 Johns., 499, per Kent, J.) It begins : “ Any existing' corporation.” The defendant expired by limitation, April 18. Its powers were not simply in abeyance; the corporation was extinct.

If it be possible to spell from the words of the statute a retroactive intent, we think this intent is limited by the words “ existing corporations,” to a class of which the defendant is not one. We conclude therefore that the defendant could renew its charter only under the law of 1876. This it did not do, and on April 19 1880, was extinct.

Whatever be the status of its right of- way or of the real estate acquired in fee, its franchise was gone — its franchise to collect tolls. Whether aptly worded or not, the order in effect restrains the exercise of this franchise, and does no more.

The order should be affirmed, with costs and disbursements.

Gilbert, J., concurred; Barnard, P. J., not sitting.'

Order granting injunction affirmed, with costs, and disbursements.