As the demurrer to the replication opens the whole record, so far as defects of substance may be found, and the plea is claimed to be defective for want of certainty, ■the sufficiency of the plea is the first question to be settled.
The information is general, calling upon defendants to show by what warrant they claim to have and use certain liberties, privileges and franchises. It does not go upon the ground of failure to comply with any act of incorporation, or other law granting such rights and franchises upon certain conditions, nor does it claim a forfeiture of rights admitted to have existed, upon this, or any such ground. The plea sets up the act of incorporation, their organization under it (and other acts), by their *302alleged compliance with which the defendants claim the rights and franchises in question; alleges the construction of their road “from Jackson, in the county of Jackson, to Eaton Rapids, in the county of Eaton,” without specifying the number of miles, otherwise than by saying that “when said company had completed five consecutive miles thereof, and on the twenty - seventh day of November, in the year eighteen hundred and fifty, the directors of said company did, by resolution duly passed, require that tolls should be exacted,” &c.
It is not denied that the plea is a full answer to the information, upon every point except that of the right to take tolls. But by the law as it then stood — Paws of' 1848, p. 65, § 17— five consecutive miles of the road were required to be completed before this right accrued; and the question is, whether the above cited allegation of the plea is sufficiently certain upon this point. Had the plea been specially demurred to for this reason, it might perhaps have been held bad in form, as it is not a direct and positive allegation of the completion of the five miles of road. But it is a formal defect only, which could not have been reached on general demurrer, and the People having replied without objecting to the defect, on demur-, rer to the replication we can not notice this formal defect in the plea: — Steph. on Pl. 177; 1 Chit. Pl. 707, 708.
The only questions in the case must therefore turn upon the sufficiency of the replications, which have been specially demurred to.
In determining these questions, it may be well to take a general view of the laws under which the franchises of the company are claimed, and then to inquire whether the replications exhibit a ground of forfeiture, and to what extent.
First, as relates to the construction of tha road. As a pre-requisite to the right of taking toll, the company, as already noticed, were bound by the law of 1848 to have *303completed five consecutive miles of their road. This was reduced to two miles by the act of February 12, 1855— Comp. h. §§ 1984, 1986 — but whether this act can affect roads five miles of which had already been constructed,, it is unnecessary here to inquire, as the questions here involved would not be materially altered. Upon the completion of the five consecutive miles under the act of 1848, the right to take toll became vested; and, whatever might be the length of the road authorized by the charter, the right to tolls on the part completed, could not, by any thing in this act, or any other act applicable to the case, be forfeited or affected by the failure to construct the balance of the road. This is evident from the 19th and 20th sections, by the former of which the company are to cease to be a body politic, if within two years they shall not have commenced the construction of their road, and actually expended thereon ten per cent, of -the capital stock, and by the latter, if the road is not completed within ten years, the company “shall forfeit all rights to so much of the road as shall not be completed in a continuous line.” These are the only penalties-for failure to construct according to the act. If therefore a forfeiture of the franchise as to the entire road was claimed on the ground that the road had never been constructed in the manner required by the charter, it should have appeared upon the replication that no five consecutive miles of the road had been so constructed. And if the forfeiture of a part only were claimed on this ground, the replication should have shown specifically what part was not so constructed; otherwise the judgment of the court might be nugatory or uncertain, as the record would not show to what part of the road it applied.
This disposes of the first and fifth replications, which relate entirely to the question of construction of the road, and which, though literally true,, would not be inconsistent with the fact of the due construction of five *304consecutive miles of the road; since they amount to no more than an assertion that the road, as a whole, was not constructed according to the statute.
Repairs. As by the charter (for the act of 1848 is part of the charter) if five consecutive miles have been duly completed, the franchise can not be 'forfeited, as to the part so completed, by the failure to construct the balance, the question arises, whether if these five miles are kept in repair, and the remainder of the road or part of such remainder be afterwards constructed, would a failure to keep such remainder in. repair forfeit or affect the franchise as to the first five miles, while that is kept in repair ? I think it would not. Had the company been under the obligation to construct the whole road authorized by the charter (as is frequently the case with turnpike charters), a neglect of this obligation, by which the public would lose the benefit in consideration of which the franchise was granted, might, unless otherwise provided, be ground for forfeiting the franchise for the whole road. Doubtless a failure to keep the remainder of the road in repair when constructed, would be cause of forfeiture pro tanto: but whether for the whole of such remainder, or only so much of it as was not, for five consecutive miles, kept in repair, it is unnecessary here to decide; since, from Avhat has already been said, I think it sufficiently clear that, to authorize a forfeiture of the whole road on the ground of non-repair, the replication should have shown, at least, that the five miles first constructed had not been kept in repair; and to warrant the forfeiture of part for the same cause, the particular part, of which a forfeiture was sought, should have been in some way described and distinguished.
The second replication (which raises only the .question of repair) is defective in this respect: all that is properly alleged in it may be ftrietly true and yet the five miles may have been all along in good repair. The general *305statement with which this replication commences, is not of itself sufficient, without showing how and to what extent the road was out of repair, and that it had continued in that defective state for an unreasonable length of time. Absolute perfection can not be required as the standard of repair, nor could slight or occasional defects operate as a forfeiture, nor even such as interfered with safety or convenience, if repaired within a reasonable time. The company can not be required to repair before defects occur needing repair: and if the moment they occur their franchises are ipso facto forfeited, the charter is but an illusion and a snare. Admitting, therefore (without intending to decide), that any want of repair short of a virtual non user or abandonment would be cause of forfeiture, notwithstanding the penalty given by the twenty-third section, I am satisfied that no defects could be allowed so to operate except such as render the road unsafe for travel, or at least highly inconvenient, and these only when they had been continued an unreasonable length of time. It is only for defects which render the road unsafe that a penalty is given against the directors by the twenty-third section, and even this is not to be imposed till the time necessary for repairs has elapsed after notice of the defects. And it can hardly be supposed the Legislature intended the company should forfeit their entire charter for a less fault than that for which they have so guardedly imposed a small specific penalty. Now the general allegation of want of repair, at the beginning of the second replication, fails to show that the road was rendered unsafe or inconvenient by reason of want of repair, or to show any continuance of the deficiencies complained of. It charges only that it was out of repair on a certain day. These defects are supplied in the following portion of the replication by saying, “and the planks thereof were in many parts of said plank road displaced, warped and rotten, so that the said plank road was and still continues dangerous and inconvenient to pass *306over.” From these premises it proceeds to draw the conclusion that the road was out of repair, and to demand a forfeiture. It is therefore manifest that the whole allegation, taken together, amounts only to the assertion that the road was in many places so out of repair as to be inconvenient and dangerous: and this is a clear admission that in other portions it was not thus out of repair. It should therefore have distinguished the respective portions.
We have thus far considered the case as it depends upon the charter (and the act of 1848 a part of the charter), under which the company obtained their corporate rights. But the relator insists that, by the second section of the act of February 12th, 1855 — Comp. L. §1933 — the franchise is forfeited for the entire road, by a failure, as to any part of the road, to comply with this section. This brings us to the third replication, which appears to be framed entirely upon this section. As this section does not expressly refer to roads already existing under previous acts, I am inclined to think that, upon settled rules of construction, it should not be held to apply to such roads. “ Nova constitutio futuris formam debet imponere et non prceteritis.” See opinion of Kent J. in Dash v. Vankleeck, 7 Johns. 477 and authorities cited.
But if intended to apply to roads already constructed, it may be doubtful whether this section was intended to impose any additional obligation as to the condition of the road, beyond what was already imposed by the sixteenth and twenty-third sections of the act of 1848. By the sixteenth section of that act, the road was required to be constructed so as to have “ at least sixteen feet width of good, smooth and permanent road, eight feet of which at least should be of plank not less than three inches thick,” &c. By the second section of the act of 1855, just referred to, the company are required “ to cause to be laid down and kej>t closely together the plank upon its road, and in case of default it shall forfeit the right to receive *307any toll upon such road.” If not intended to impose any new obligation, then the penalty of forfeiture of the whole charter is in reality imposed for a violation of the act of 1848, under which, as we have already seen, the whole could not be forfeited for this cause, if the five miles first constructed were kept in repair. The act of 1855 then imposes the penalty of entire forfeiture, while by the original act, which constituted the contract between the State and the company, a partial forfeiture only - was allowed. On the other hand, if the act was intended to require the road to be kept in a more perfect condition than required by the act of 1848, then it not only imported a new and additional term into the contract, but imposed a forfeiture of the whole franchise for a violation of the new term thus imposed. In either view the act, in its application to roads already constructed by companies not having assented to it, must, I think, be void, as conflicting with the Federal Constitution; nor do I think it can be justified as a police regulation, under what is usually denominated the police power. Powers, the exercise of which can only be justified on this specific ground, and which would otherwise be clearly prohibited by the Constitution, can be such only as are so clearly necessary to the safety, comfort or well being of society, or so imperatively required by the public necessity, as to lead j to the rational and satisfactory conclusion, that the framers of the Constitution could not, as men of ordinary prudence and foresight, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.
No such conclusion, I think, can reasonably be drawn in the present case. By the express provisions of the act of 1848 (§§16 and 28) which constituted the contract, both the convenience and safety of travel had been expressly contracted, and amply provided for, and the penalty •for a breach of the obligation expressly agreed upon, or *308left to result from the provisions of the law then in force. And such penalties, if enforced, would amply satisfy every requirement of safety and convenience. While the act of February 12, 1855, so far as it seeks to impose any additional obligation beyond the “good, smooth and permanent road” required by the 16th section of the act of 1848, could not be required for safety, and does not appear to have been based upon this idea; and the slight additional convenience, if any, which the act of 1855 might possibly secure, is not such as to induce the belief that it wa3 not purposely and properly omitted in the original contract, nor such as to render the contract amendable at the option of one of the parties, especially where; as in this case, the contract expressly provides against such amendment. Act of Incorporation, . L. of 1848, p. 369. When the public, through the Legislature, enter into a contract for securing the public convenience, they can not be required to insist upon the highest possible degree of convenience, nor can their failure to do so render the contract amendable at their option.
The fourth replication presents, first, the question of substitution of gravel for plank, under the act of February 19, 1857 (Comp. I. §1881) and secondly, the question of repairs. This is demurred to on three distinct grounds: 1st, that it is not sufficient to oust the defendants ; 2d, that it is bad for duplicity, and 3d, for uncertainty. It is unnecessary here to notice the first objection further than to say, that as relates to the question 'of forfeiture for the cause stated, this replication stands irpon grounds analogous to those of the second relating to the question of repairs, and is to be governed by similar considerations. Upon the question of duplicity the replication is clearly bad; not because it states a great number of facts in relation to the removal of plank, and the failure in substituting gravel according to the act; as all of these facts bear upon the single point of substitution’; — but because, *309after having presented the issue upon this point, it proceeds to raise a distinct issue upon the question of keeping the gravel road in repair. See 1 Chit. Pl. 687. I think it also defective in certainty, in not describing in some way the portion of the road to which it was intended to apply.
The defendants, I think, are entitled, to judgment on the whole record, but the People should be allowed to amend.