State of Rhode Island v. Pawtuxet Turnpike Company , 8 R.I. 521 ( 1867 )

The leading ground assigned for this application is, that the prosecution was not instituted in behalf of the State until after a lapse of over six years from the happening of the cause of forfeiture; and we are referred to Angell and Ames on Corporations, (7th Ed.) § 743, and the cases there cited, as showing that after the lapse of so long a time, we ought not to entertain the proceeding. The cases cited in Angell and Ames show that the English rule is, not to allow an information in the nature of a quo warranto to be filed, at the instance of a private individual, for the purpose of impeaching the title to a corporate office or purchase, where the same has been held or exercised without complaint for more than six years from the time of the alleged usurpation. An information in the nature of a quo warranto cannot be filed by a private individual without leave, which the court may, at its discretion, either grant or refuse. To regulate their discretion as affected by the lapse of time, the English courts adopted the rule which we have stated. But the Attorney General, representing the Crown in England and the State in this country, may file an information in the nature of a quo warranto, without leave, according to his own discretion; and we find no English law which holds that an information, so filed, can be barred by the lapse of six years independently of any statute to that effect. On the contrary, in the leading case of Rex v.Wardroper 4 Burr. 1963, where after a lapse of nineteen years, the court refused leave to file an information, the judges were careful to express a reservation in favor of the Crown, and said: "Indeed, no length of usurpation shall affect the Crown, nullumtempus occurrit regi." The only case which we find that claims a discretion for the court, in this regard, over an information filed by the Attorney General, is the People v. Oakland CountyBank, 1 Douglas (Mich.) R. 285. The court in that case do not profess to follow any precedent, but stand on their own opinion of what is salutary and reasonable. We think the case of Rex v.Wardroper declares the sounder doctrine. The Attorney General being a public officer, may be presumed to be capable of a salutary and reasonable discretion, as well as the court, and when, acting in behalf of the State, he deems it his duty to prosecute for a forfeiture, it is not for the court, in the absence of any statutory limitation, to say he is too late. Indeed this court has itself decided that, after the information has once been filed, its discretion ceases, and it has then nothing to do but administer the law the same as in any other case. State v. Brown, 5. R.I. 1.

In this case, moreover, the Attorney General is acting not only on his own discretion, but also under a resolution of the General Assembly authorizing the proceeding, which gives additional strength to the reason why the court should allow the prosecution to go on, notwithstanding the lapse of time.

The ground upon which the court have decreed a forfeiture in this case is, that the defendant corporation did, in the year 1855, sell and convey to the town of Cranston a portion of their road, and that since then they have ceased to keep that portion of the road in repair. The counsel for the corporation claims, as another reason for a rehearing, that under the first section of their charter, the corporation had a right to make such sale and conveyance, and that the attention of the court was not directed to this provision at the former hearing. The first section of the charter gives a name to the corporation, and provides that by that name they "shall be and hereby are made able and capable in law, as a body corporate, to purchase, possess, have and enjoy to themselves, their successors and assigns, lands not exceeding fifty acres, tenements, rents, tolls and effects of what kind or nature soever, and the same to grant, sell, or dispose of by deed or deeds at their own will and pleasure." This section confers the right which is claimed for the corporation if the road itself was intended to be included in the fifty acres there mentioned. Subsequent provisions of the charter show that this could not have been the intention. The second section prescribes that the road, to be made and maintained by the corporation, shall be three rods wide, and shall commence and terminate at certain points, pursuing a certain direction. The eleventh section provides that when the earnings of the road shall amount to enough to pay what the road cost, together with the expense of maintaining and keeping it in repair, and twelve per cent. per annum in interest thereon, the corporation shall be dissolved, and the road aforesaid vest in the State. These two sections are inconsistent with a right to sell and convey the road; for after a sale and conveyance legally made, the road could no longer be maintained by the corporation nor vest in the State. The fifty acres mentioned in the first section must therefore be construed to mean fifty acres in addition to the land on which the road is made — a construction which the more readily suggests itself from the fact, that a special mode is provided for the acquisition of the land to be used for the road.

We have also been referred to a statute, passed in 1864; authorizing turnpike corporations to transfer their roads to the towns where they are located, for public highways, and have been asked to infer from thence that the transfer by this corporation of a portion of its road for such a purpose is no ground of forfeiture. The statute is not retrospective in its terms, and it does not purport to be merely declaratory of existing laws. It initiates a new policy; but while it may afford reason, appealing to the Attorney General or the Legislature, for not prosecuting this corporation for having done what this and every other turnpike corporation in the State are now permitted to do, we do not see how it gives us any right to declare the law, as applicable to an act done in 1855, to be any otherwise than it was before the enactment of the statute.

The counsel for the corporation also presses upon the court, again, the arguments which were urged at a former hearing. We, however, see no sufficient reason for changing the opinion then expressed, and must, therefore, dismiss the application.