The opinion of the court was delivered, May 13th 1867, by
Thompson, J.— We will notice in this discussion only the answer of the court to the defendant’s 4th point. The action was 'instituted to recover from the defendant below certain tolls *182alleged to be due the plaintiff from the defendant, for the year 1862, under the resolution of the 14th April 1843: Pamph. L. 386. This resolution was passed while the state was the owner of the West Branch Canal, as well as all the other public improvements built by her.
The resolution was intended to aid the construction of the Elmira and Williamsport Railroad, and the state undertook, under the regulations mentioned in the resolution, to pay over to that company, at the end of each financial year, all tolls received upon the canal, derived from passengers and "freight brought to it by the railroad company. The act was not to take effect until one track of the road should be finished to Elmira, and not to continue for á longer period than fifteen years. Then comes a proviso which materially affects the case. It is as follows: — ■
“ And provided further, That if at any time during the above period the net proceeds of said road, after defraying the necesr sary expenses for motive power and superintendence, shall exceed 6 per cent, per annum upon the capital stock thereof, then, and in such case, the rights and privileges hereby granted shall cease and determine.”
We have no doubt that the plaintiff below was the legal successor to the Elmira and Williamsport Railroad Company, and fully invested with all its rights and privileges, and that the defendant was bound, as was decided in 9 Casey 288, to pay the railroad company, being the successor to the state, the tolls in question, if they have not ceased by the express limitation in the resolution. We think they did so cease in 1862. By the report of the railroad company in the auditor-general’s office, the stock is represented to be $1,000,000, and the earnings of the company to have been in 1862 $347,822.64, and that the disbursements for that year, for other purposes than construction and interest, were $214,322.04, leaving a balance of $133,500.60, which was far above 6 per cent, on the reported stock of the company. To the present question it is no matter what may have been done with this money by the company, whether it has been applied to the cost of construction or not. The only inquiry now is, did the net earnings of the road in 1862, “ after defraying the necessary expenses for motive power ana superintendence,” exceed 6 per cent, upon the capital stock of the company ?
It is demonstrated by the company’s official report that it did, and thus the period having arrived at which the grant was to cease, we think the court erred in directing a verdict for the plaintiff, and in entering judgment thereon afterwards. It was purely a grant or gratuity, and we have no right or power to enlarge the terms of it, and call everything capital stock, such as the cost of construction, right of way, building shops, &c., &c.
*183It was not interest on the capital that was to be the limit at which the gratuity should cease. It was to cease when the net earnings should exceed 6 per cent, on the capital stock. No one can mistake what capital stock means. The company have defined it in their report, and set it down as it exists, at $1,000,000. The net earnings thus reported would exceed twice that sum.
Regarding the action of the court as a' mode of viewing the law of the case, we must reverse the judgment; and although we might enter judgment on the reserved point, we will concede the prayer of the defendant in error, reverse the judgment below and award a venire facias de novo.