Susquehanna Boom Co. v. Dubois

The opinion of the Court was delivered, April 2d 1868, by

Agnew, J.

The Act of 11th December 1866 authorizing the Susquehanna Boom Company to erect a dam, and allowing an increase of toll, provides for no postponement of its operation. The grant of authority was immediate, and waited only upon the acceptance of the company. The company was not bound to accept the privilege, but when it did, the duty to fulfil the purpose of it arose. It could ^not charge the increase of toll allowed without subjecting itself to the supervising power of the court over it, as a corporation, to enforce performance of that duty. Corporations, especially those whose very existence and powers may be withdrawn at the will of the legislature, as in this instance, cannot reap the fruit of the legislative grant, without incurring a correlative duty to perform that which is made the consideration of it. The argument that the authority to take the increased toll must wait upon the completion of the dam, because the company may not see fit to erect it, is therefore without weight, for the duty may be enforced by the courts or by a legislative repeal.

The rule that a power not clearly conferred must be deemed to be withheld, is an admitted canon in the interpretation of private charters of incorporation, but it is inapplicable. The authority to take the increased toll is granted in terms most clear and unambiguous. “ That by reason of the expense of the erection of the said dam, it shall and may be lawful for said company to charge and collect, as toll or boomage, eighty-five cents per thousand feet, board measure, in lieu of fifty cents, mentioned in the first section of supplement,” &c. The only question is whether the time for charging the increased toll shall begin upon the acceptance of the law or on the completion of the dam. The legislative grant took effect, as we have seen, as soon as the company accepted it, and we cannot discover how the recital in the proviso itself, of the reason for giving the authority, differs in 'meaning from that which it would have had, had the recital been placed in a preamble to the act. The reason for conferring the authority to take additional toll, was the expense of erecting a new dam, but the legislature did not impose it as a condition. Had this been the intent, nothing was so easy or so probable as to express it. The instance put in argument of a turnpike or canal company, attempting to take toll before its road or canal is made, is wholly wanting in analogy. Here the boom company has its works constructed and in full operation, including an old, but now insufficient dam. It was in the power of the legislature, and might have seemed to it perfectly proper, to increase the toll for boomage without any further improvement, or, if it chose; as a means of assisting the company to construct new work.

It passed the act without any clause postponing its effect, and it granted this authority without any restriction whatever, upon the tirhe of its operation. A further evidence of the legislative intent to give.immediate operation to the act is contained in the second section, repealing all laws inconsistent with the provisions of this act. Not a word is said as to the time of repeal, but it is left to take immediate effect. The restriction in the former act of the toll for boomage, to fifty cents per thousand feet, was therefore taken away at once. If a contrary intention prevailed in the first section, it is more than probable the repealing section would have expressed it also, so that the two sections should be consistent. Why then should we say that it was intended to place a condition upon the grant of authority, merely on the ground that the legislative reason for the grant was the expense of the erection of the dam ? The argument might have some weight if no duty vested in the company, to begin and finish its dam in a reasonable time. But this we have seen is not correct, and that the corporation cannot omit to perform the correlative duty it assumed, when it accepted a privilege founded upon its undertaking to perform the work which was evidently its consideration.

We have not noticed the bond, said to be filed, for the reason that it is unnoticed in the pleadings, and because to do so would require us to give an interpretation to the language of its conditions not called for or proper at this time.

The decree of the court below is therefore reversed, the injunction set aside and the bill of the plaintiffs dismissed at their costs, including the costs of this appeal.