(dissenting). The bill in this case is filed by the prosecuting attorney of the county of Oakland, on the complaint and request of Theodore A. Collier, commissioner "of highways of the township of Pontiac, in said county; and states that the defendant company was duly organized under Act 240, Laws of 1848, and Act 143, Laws of 1857, and was authorized, under said acts, to construct a plank road from the village of Pontiac, in the county of Oakland, to the village of Lapeer, in the county of Lapeer; that more than 15 years ago said defendant took possession of the route, and built and constructed a gravel road on a portion thereof, it being a portion of the public highway, and said road being nine and one-half miles long; that defendant constructed the necessary toll-houses upon said road, with convenient gates, for the purpose of collecting toll, and that said defendant never constructed over said nine and one-half miles of the road between Pontiac and Lapeer; that, for more than 10 years after the graveling of said nine and one-half miles of road, the company from time to time demanded and received toll of persons passing over the same; that said defendant has never constructed or maintained its road as required by law; that the graveled road was not made nine feet wide, or graveled to the depth of seven inches; that the gravel is not of the size required, and nowhere is the road 16 feet wide; that said defendant has never contructed its road on a grade not exceeding in ascent or descent more than one foot in every ten, nor is it a good, smooth, permanent road; that the defendant has not caused its road, nor any mile thereof, to be kept in good repair; that said road, as constructed and used by defendant, has always been not of sufficient width, *6the grade has been more than one loot descent in ten, the gravel is not of sufficient depth, and it has continued the same rough and uneven, full of holes and ruts, and so much out of repair as to be dangerous for the passage of teams and vehicles; that for more than one year last past defendant has ceased entirely to keep up its road, or any part thereof, or the gates on the same, and has abandoned said road without the consent.of the Legislature; and that, by reason of the acts and neglects and abandonment above mentioned, the bill charges that the defendant has forfeited all right to take or demand toll on said road, or any part thereof.
Complainant prays that the Pontiac & Lapeer Plank Road Company may answer without oath, and that the default of the company in not constructing or maintaining its road as required by law, and its default in ceasing to keep up its road, and in abandoning the same without the consent of the Legislature, be judicially ascertained and declared, and that defendant be perpetually enjoined from demanding or receiving any toll hereafter, and that such other relief may be given as shall be agreeable to equity.
To the bill of complaint, the defendant, by its attorney, filed the following demurrer:
“ This defendant demurs to the said bill, and for cause of demurrer shows that the complainant has not in and by his said bill made or stated such a case as entitles him, in a court of equity, to any discovery or relief from or against this defendant touching the matters contained in the said bill, or any of such matters.
“And, for a further cause of demurrer, this defendant shows that the said circuit court in chancery is not the proper tribunal to hear, try, and determine the matters stated and charged in the complainant’s bill, viz., that said defendant had not constructed its said road according to the charter, and statutes forming a part thereof, under which said road was constructed, as is alleged in said bill; but that the Supreme Court of the State of Michigan has jurisdiction, and is the proper tribunal, by information in the nature of a quo warranto, to hear, try, and determine the said matters.
“And, for a further cause of demurrer, *7shows that said circuit court in chancery is not the proper tribunal to hear, try, and determine the matters stated in said bill as to whether or not the defendant had, after having constructed its road, suffered the same to get out of repair so as to be inconvenient and dangerous for the passage over it of teams and vehicles, or as to whether the defendant, for the space of one year or more last past, had ceased entirely to keep up its said road, or any part thereof, and more than one year ago removed all of its gates from its said road, and abandoned the same without the consent of the Legislature of the State of Michigan, and has ever since that time continued to keep said gates so removed, and t'o abandon its said road without the consent of the said Legislature; but that, by the charter and statutes forming a part thereof named in said bill, fines and penalties are amply provided to protect the public in all their rights pertaining to the dangerous condition of said road or otherwise, and that such fines and penalties are to be recovered, and the right to take toll in certain cases forfeited, by such corporations in actions at law, and not by proceedings in chancery.
“"Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, this defendant demurs to the said bill, and to all the matters therein contained, and prays the judgment of this honorable court whether it shall be compelled to make any further or other answer to the said bill; and it prays to be dismissed, with its reasonable costs in this behalf sustained.”
The cause, on demurrer, was heard at the Oakland circuit, before Judge Stickney, who overruled the demurrer, and allowed the defendant 30 days in which to answer. From this decree the defendant appealed to this Court.
Complainant’s bill is filed under the law of 1855, as amended by the law of 1875. Act No, 122, 1855; No. 232, Laws of 1875. See, also, How. Stat. § 3648.
It is claimed by defendant’s counsel that the act of 1875 does not apply to the charter of the defendant company, and the general law relating to plank-road companies, which constitutes a part of defendant’s charter. The general law was passed March 13, 1848, and the charter of defendant, April 3, 1848. The defendant company, by its counsel, further claimed that, if the act of 1875 does in any way apply *8to the special act and law of 1848, then the law of 1875 is •void, for the reason that it is in conflict with the federal Constitution; it impairs the obligation of contracts.
By the terms of the act authorizing the existence of the defendant, the company was to continue 60 years. Laws of 1848, p. 371. By section 4 of the special act of incorporation of the defendant company, the right to amend its charter by a two-thirds vote is expressly reserved to the Legislature after 30 years; and more than 30 years have elapsed since the organizing act was passed. Laws 1848, p. 371. No question seems to be made but that the act of 1875, and under which this suit was brought, was passed by the requisite two-thirds vote of the Legislature. Sections 2, 3, and 4 of the act of 1875 read as follows:
“ Sec. 2. Every plank-road company, and the owners of any such plank road by purchase or otherwise, shall cause to bo laid down, and kept closely together, and in an even manner, so that the surface shall be uniform, the plank upon its road; or if the said company or owners shall have built any portion of their road, or may hereafter build any portion of the same, of gravel, or of stone so broken as to serve the purpose of gravel, they shall cause the said gravel or broken stone, of proper quality and quantity, to be placed upon the road, and kept in a uniform manner, of the width and depth required by law; and, in case of default, they shall forfeit the right to receive any toll upon such road; and the prosecuting attorney of the county, on complaint of the highway ■commissioner of any township in which any portion of the road defectively constructed or out of repair lies, may institute a suit in the circuit court of the same county in chancery to have such default judicially ascertained and declared; and the said circuit court in chancery for the respective counties shall have full jurisdiction of all cases arising under this act, to hear, try, and determine the same, upon bill or petition filed according to the usual course and practice of those courts.
“ Sec. 3. Every plank-road company shall have the right to receive tolls at any time after it shall have constructed two consecutive miles of [the] road: Provided, That this section shall only apply to plank roads during the period in which they are or may have been in the course of construction, and *9not afterwards: And provided further, That if any plank-road company, or the owner or owners of any snch plank road by purchase or otherwise, shall have heretofore, for the space of one year or more, ceased, or may hereafter cease, in like manner, to keep up the road, or any part thereof, exceeding five continuous miles in length, and shall have removed its gates therefrom, and abandoned the same without the consent of the Legislature of this State, such road shall be deemed to have forfeited the right to take any toll upon said road, or any part thereof, and such forfeiture may be ascertained and enforced as provided for in section two of this act.
“Sec. 4. Every plank-road company shall cease to be a body corporate if within three years, or, if hereafter organized, then if within three years from the date of its organization, it shall not have commenced the construction of its road, and actually expended thereon at least ten per cent, of the capital stock; and every plank-road company which shall have so far completed its road as to be entitled to receive tolls thereon, or upon some portion thereof, and shall have actually commenced to receive such tolls, shall cease to be a body corporate, if it shall hereafter neglect, for the term of five years successively, to hold the annual meeting for the election of directors, and shall hold no election of directors during all that time.”
It is true the act of 1855, to which the act of 1875 is an amendment, does not in terms refer to the general plank-road law, but they both relate to the same subject, and were both intended, as long as in existence, to be a part of the general law of the State relating to plank and graveled roads. Before these two amendatory statutes were passed, the only mode of redress, when the company had completed a portion of its road, but not as required by law, or failed to keep it in proper condition for travel when constructed, was to prosecute for penalties provided by the general law, or proceed by ■quo warranto to forfeit the franchises of the company. It is not claimed by counsel for defendant that for either or any of the causes of complaint stated in the bill these proceedings could not have been properly taken. In this case the statute of 1875 does no more than furnish to the parties *10aggrieved further or other remedy for the injuries received or impending. This statute says, in substance, that the company shall have no right to take toll until some portion of its road has been constructed, or, if constructed, while it is out of repair; and its condition in both of these respects may be investigated and determined in a court of chancery; and if the road shall be found not constructed according to the requirements of the statute, or, if constructed, that it is out of repair, then and in such case the company may be enjoined from collecting toll.
I fail, in this proceeding, to discover any infringement of vested rights, or the impairing of the contract obligations of the company or the State. I know of no statute or rule of court vesting in the company the right to take toll upon its road before any portion of it is completed, or, if completed, kept in such manner as to be unfit for travel and abandoned. Franchises are granted only upon condition that they shall be properly executed, according to the terms of the charter under which they are received. This is a part of the law of all corporations, and the remedy for failure of the recipient of the franchise to properly execute the same is always within the power creating the franchise to prescribe, and this is always a well-understood part of the compact between the State and the beneficiary. The kind of remedy may be changed in such manner as best to secure the object of the franchise. Of course, the remedy, whatever it may be, can never affect vested rights. A non-performance of the conditions of the act of incorporation constitutes a forfeiture at common law. The non-completion of the road within the time prescribed, the construction of the road not in accordance with the act, the neglect to repair the road until it becomes unfit for travel, are all grounds of forfeiture, and are all averred to exist in this case in complainant’s bill; and the demurrer of defendant admits this to be true.
The circuit court in chancery, under the law of 1875, is *11given jurisdiction to take cognizance of the case, and, upon this admission by the demurrer, enjoin the defendant from taking toll. This is right and just, and interferes with no constitutional right or privilege of the defendant. The legislation of 1875 casts no additional burden upon the defendant. It only requires that the company shall not enjoy the benefits to be derived from the franchise until it shall perform some of the conditions upon which the franchise was granted. Under the charter of this defendant company it could claim no vested right in tolls until they had been earned. The bill shows those now sought to be collected have never been earned.
The decree of the circuit judge overruling the demurrer, I think, should be affirmed.