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pression, it is necessary that there should be no other tolls than
those that are demandable at places notoriously appointed to receive
them, where the traveller may discharge them without detention or
the costs of a lawsuit ; and that the object of the legislature was to
enable him to do so here seems to be deducible from other provisions
in the same act. Printed rates are ordered to be affixed to the gates,
where alone, it is to be presumed, an inspection of them was sup-
posed to be serviceable ; and when the road shall be found by an
inquest to be out of repair it is provided that "the tolls granted to
be collected at such turnpikes or gates shall cease to be demanded;"
which would be altogether insufficient for the purpose if tolls were
demandable elsewhere. Our turnpike roads are public highways,
and it is the franchise of the citizen to use them free of every
restriction that is not explicitly imposed by the legislature ; so that
a quantum meruit, how consistent soever it may seem with justice,
is concluded, for reasons of convenience and policy, by the rule I
have mentioned.

Judgment affirmed.

Referred to, 2 W. & S. 551 ; 12 II. 195.

Distinguished, 3 W. 128; 2 W. & S. 167 ; 2 H. 164.

Followed, 2 Jones 3fi2.

The reference 6 II. 11, to Royer p. Ake, should be to 3 P. & W. 464.

June 1831.] OF PENNSYLVANIA. <*G5

Keck against Appleback.

In an action brought to recover the amount of a judgment rendered by a
justice of the peace in another county, a <-ertiJie.<l transcript of Huch judgment
is prima facie evidence, upon which the plaintiff may recover.

ERROR to Huntingdon county.

This was a suit originally brought before a justice of the peace
of Huntingdon county to recover the amount of a judgment which
the plaintiff, Henry Keck, had obtained against the defendant,
John Appleback, before a justice of the peace of Lehigh county.

Upon the trial of the cause in the court below, the issues being
on the pleas of nultiel record and payment, the plaintiff offered in
evidence the transcript of a judgment -entered in his favor against
the present defendant by a justice of Lehigh county, and which was
regularly certified by the said justice to be a true transcript of his

This evidence was objected to by the defendant, because the
docket itself was better evidence, but at all events a sworn copy
must be produced.

The court below sustained the objection, and a sealed bill of
exceptions, which was here assigned for error.

Bell, for plaintiff in error.

The argument derived ab inconvenicnti should have weight in
the decision of this question ; for to require in every case that the
docket and the justice himself should be produced would be re-
quiring more than the claims which are usually prosecuted before a
justice are worth ; therefore it was that that section of the Act of
1810 made a certified transcript good evidence.

The certificate of a justice of the acknowledgment of a deed is
prima facie evidence, because it is made so by the Act of Assembly,
and in terms riot stronger than those employed in this act.

Miles, for defendant in error.

The Act of Assembly referred to does not prescribe any rules of
evidence, but directs that the justice shall proceed as in cases
originally brought before him. Cited, Wolverton r. The Common-
wealth, f S. &'R. 273; O'Donnel v. Seybert, 13 Id. 54; Welsh
v. Crawford, 14 Id. 440.

PKR CURIAM. In Welsh r. Crawford the judgment was offered
collaterally. Here it was offered as the foundation of the pro-
ceedin r , and its competency did not depend on any abstract rule of

o p. & \v. 30

466 SUPREME COURT [Sunlury

[Keck r. Appleback.]

evidence, but on the provisions of the Act of Assembly which gives
the remedy, and which directs that a certified transcript of a judg-
ment against one residing in another county may be delivered to
the plaintiff for recovery of the amount before a justice of the
peace in the county where the defendant resides, " as in cases
originally brought before him." It is clear, then, that the object
was not to originate another action for the same cause in which the
existing judgment might be evidence of indebtedness ; but to have
execution of the existing judgment itself, as in cases originally
brought before the justice, who might therefore issue execution on
it without the precaution of a scire facias, although that be a very
proper measure. The legislature, then, having pointed out the
mode of authentication by directing the transcript to be certified,
it would be going far to say that it is not sufficient in the first
instance. Unquestionably it lies on him who disputes the fact thus
certified to disprove it ; and the court below ought to have admitted
the certified transcript as sufficient prima facie.

Judgment reversed, and a venire de novo awarded.

Referred to, 13 Wr. 172.
Followed, 2 W. 4l>5.

Irvin against Susquehanna and Phillipsburg Turn-
pike Co.

The benefit which results to individual property by the incorporation of
a company and location of a public road, does not, in contemplation of law,
enter into the consideration of the contract of subscription and such subscrip-
tions are necessarily subject to the power of the legislature to change the
location of the road, where the contrary is not expressly stipulated.

WRIT of error to the Special Court of Common Pleas of Centre
county. (Reed, president.)

This was an action brought by the Susquehanna and Phillips-
burg Turnpike Road Company against William Irvin to recover
from him certain dividends of his subscription to the capital stock
of said company.

The Susquehanna and Waterford Turnpike Company was in-
corporated by the Act of the 22d February 1815, with authority
to locate and make a road from the town of Waterford in the county
of Erie, to the river Susquehanna, at or near the mouth of Ander-
son's creek, in the county of Clearfield. The 28th section of
this act provides, "That a bridge shall be erected over the river
Susquehanna, where the said road terminates, at the joint expense

June 1831.] OF PENNSYLVANIA. 467

[Irvin v. Susquehanna, &c., Turnpike Co.]

of the said company, and the company hereinafter mentioned."
Then follow several sections incorporating a company to make a
road from Northumberland to the Susquehanna, " at or near the
mouth of Anderson's creek, in the county of Clearfield." By a
subsequent Act of Assembly this latter company was divided into
different companies, who were authorized to make the different
sections of the road between the extreme points : and the present
plaintiffs, the Susquehanna and Phillipsburg Turnpike Road Com-
pany, was one of them, who was authorized to receive subscrip-
tions for and make that part of the road which terminates " at or
near the mouth of Anderson's creek;" and where the bridge was
to be built. To the stock of this company William Irvin, the de-
fendant, subscribed. On the 4th September 1819, the charter
was obtained, and the company went into operation. William
Irvin was elected a manager, and was appointed to locate the road
according to the Act of 1812. The road being not yet made, in
1820, an Act of Assembly was passed changing the location of the
bridge, which the original act provided should be across the Sus-
quehanna at the termination of the first-mentioned road, "at or
near the rnouth of Anderson's creek:" and directing the same to
be located "at the mouth of Sugar-camp run " (being about two
miles further down the river), and also directing the route of the
road to be so changed as to accommodate itself to the bridge. The
state subscribed a large portion of the stock.

The defendant, to support his defence, offered in evidence the
petition to the legislature on which the Act of March 1820 was
obtained accompanied by the remonstrance of William Irvin and
other citizens of Clearfield county against the proposed alteration,
which was also presented to the legislature, with evidence that the
change made by the said Act of 1820 materially affected and
injured the property of William Irvin, and that a road could have
been made and a bridge erected equally conducive to public inter-
est, and at one-quarter the expense on the original route than that
on the one to which it was altered ; with the draft which accom-
panied the petition, to show the manner in which the law was

That William Irvin's son, who subscribed for his father at the
time of subscribing, was induced so to do by the representation of
the commissioners that the bridge would be built at the place first
contemplated, and that he would not otherwise have subscribed ;
the commissioners taking in the subscription showed him the law,
and stated at the same time it was so fixed in the act. That the
contract at the time of subscribing was changed by the subsequent
Act of Assembly. And also to prove that at and before his sub-
scription to the stock of the plaintiff, he was the owner of a tract
of land on the Susquehanna river, opposite the point where the

468 SUPREME COURT [Sunbury

[Irvin v. Susquehanna, &c., Turnpike Co.]

Susquehanna and Waterford turnpike terminates ; and that by the
law and the supplements thereto incorporating the said company,
and the points fixed in the said law, the said turnpike road must
have passed through his land ; and the bridge to be erected across
the Susquehanna would have abutted on and adjoined the land of
said defendant ; that by the alteration made by the Act of 1820
the bridge was built two miles below his land, and the road located
on the opposite side of the river from his land, by which he was
injured to the amount of one thousand dollars, at least, and this,
to show that the consideration that induced him to subscribe had
entirely failed.

The evidence having been objected to by the plaintiffs, it was
overruled by the court, who signed a bill of exceptions at the in-
stance of the defendants.

The defendant requested the court to charge the jury upon the
following points:

1. That the Act of llth March 1820 changed the nature of the
contract entered into by defendant on his subscription, and unless
he acquiesced in the same, subsequent to the passage of the law,
that the plaintiffs are not entitled to recover.

2. That an Act of Assembly cannot make a new contract with-
out the consent of the party, and make it relate to an antecedent
contract; and if the jury believe that the Act of 1820 does so
change the contract entered into by the defendants with the plain-
tiff, at the request of the plaintiff, against the will of the defend-
ant then he is discharged from his liability.

3. That the president and a quorum of managers could not give
consent to an alteration of the chartered rights of the corporators,
so as to bind those dissenting from the change under the laws
incorporating the plaintiffs. That this, if it could be done at all,
could only be done by a majority of the stockholders at a general

4. If the jury believe that the defendant has been injured by
the alteration of the route and the erection of the bridge, by the
Act of llth March 1820, and that he never acquiesced in the
same, then he cannot be compelled to pay his subscription.

5. If the jury believe that the defendant subscribed to the stock
of the plaintiffs on the faith of the existing laws at the time of his
subscription, that the road must pass through his land, and the
bridge be erected across the river adjoining and opposite his lands,
and this was the inducement to his subscription which has been
destroyed by the Act of 1820, then the plaintiffs cannot recover.

These points, as applied to the facts of this case, were answered
in the negative; and the jury found a verdict for the plaintiffs.

Potter, for plaintiff in error.

Jane 1831.] OF PENNSYLVANIA. 469

[Irvin c. Susquchanna, &c., Turnpike Co.]

There is no good reason why the ordinary rules of law, which
are generally applicable to contracts, should not be applied to the
circumstances of this case. A contract to pay is only binding
when there is some consideration for entering into it ; and it is
equally true, that when that consideration fails, the obligation to
pay ceases. Here this road was to pass through a new country,
and it was not at all contemplated that the profits of the road would
compensate the individuals for their money subscribed ; it was the
facilities and benefits which would result to their property : arid it
was upon this consideration that Irwin entered into the engagement
to pay. Was it not, therefore, competent for him to show by proof,
that that consideration had entirely failed ? We believe it was,
and that the law is so held in McConahy v. The Turnpike, 1 P. &
W. 426.

The managers had no authority to apply to the legislature to
change the route of the road ; their powers and duties are prescribed
by the act of incorporation : Livingston v. Lerich, 4 Johns. Chan.
597; Rex. v. Spencer, 3 Burr. 1837; Rex v. Cutbush, 4 Id.
2207. Wherever there is a change in the route of a road, without
the consent of the corporators, there can be no recovery against
them: 8 Mass. 268; 11 Id. 384; Maryborough v. Smith, 2
Conn. R. 579 ; 4 Amer. Dig. 142, No. 31, 36 ; Union Locks r.
Torone, Adams's R. 44 ; Case of St. Mary's Church, 7 S. & R.

The acts of a few of the corporators, not within the scope of the
powers delegated to them, will not bind the rest, or affect their
rights : Bridgman's Eq. Dig. 391, tit. Corporation, No. 25 ; Ellis
v. Marshall, 2 Mass. 269 ; Bac. Ab. tit. Corporation, No. 3, let.
B. Nor can the rights vested in a corporation be affected by sub-
sequent enactment ; even at the instance of a majority of the cor-
poration: Wales v. Stetson, 2 Mass. 146 ; Gray v. The Portland
Bank, 3 Id. 364 ; Commonwealth v. Jarrett, 7 S. & R. 460 ; 4
Wheat. 518.

Blanchard for defendant in error.

This company was incorporated for the purpose of making a
great public improvement ; and in no part of the act of incorpora-
tion is there to be found a recognition of the rights or interests of
individuals, with regard to the object to be attained. To make a
road between two extreme points, is the important design, and all
intermediate points, or whether a bridge is to be built higher up
or lower down a river, which the road crosses, are matters of
secondary consideration. Doubtless individuals are interested in
the locations, but whenever those interests conflict with the public
advantage, they must be subservient thereto ; otherwise the main
design of the act of incorporation would be defeated. The board

470 SUPREME COURT [Sunbury

[Irvin r. Susquehanna, 4c., Turnpike Co.]

of managers regularly chosen to carry into effect the law, found
that it might be amended ; and upon representing the facts to the
legislature, the act was passed changing the location.

The state at this time owned two-thirds of the stock, and had a
right to pass the law, as it was applied for by the company. As to
the vested rights of Mr. Irvin, he had none, with regard to the
location of this road, and if he had, they must yield to public con-
venience : Estep v. Hutchman, 14 S. & R. 439 ; Eakin v. Raub,
12 Id. 372 ; Foster r. Bank, 16 Mass. 270. The cases cited by
the counsel of the plaintiff in error, are not at all applicable to this
case, inasmuch as the companies incorporated as referred to in those
cases, were not to make a road for public purposes, but from one
township to another, for the benefit of the inhabitants residing near
to it. They were incorporations for private purposes, and to affect
their corporate rights, affected only the individuals. The public
had no interest in it.

The opinion of the court was delivered by

GIBSON, C. J. Our turnpike roads have been made by incor-
porated companies, in which the state has usually been the prin-
cipal stockholder. But though the funds have been furnished by
individual subscription, the consideration for the corporate franchise,
as well as the object to be promoted, has exclusively been the public
benefit. With this the individual interest of the stockholder has
been combined, by giving him a share of the tolls, in full compen-
sation of his share of the capital. That an expectation of benefit
from a rise in the value of property near the route has been a
powerful spring, in putting these incorporated bodies in motion, is
not to be denied. Yet, though reliance has been placed on the
effect of it, the legislature has never encouraged it so far as to re-
cognise it as a condition of the contract of subscription. Our acts
of incorporation have been moulded to more general interests.
Their provisions have been adapted to the protection or encourage-
ment of no local interest whatever, further than to compensate
direct injury to private property in the execution of the work ;
and this, too, without deduction of the indirect benefit sup-
posed to be received by the owner. In fact, I have found
nothing to indicate that it had ever entered into the considera-
tion of the legislature at all. We doubtless owe many of our
roads to it at least, it has furnished a very powerful incite-
ment but it is doubtful whether its advantages have not been
attended with more than an equal amount of mischief in the
predominance of private interest over public convenience. But
certain it is, that in no instance has the legislature author-
ized a conditional subscription, dependent on a particular location
of the road, or given color to a notion that it might be regarded

June 1831.] OF PENNSYLVANIA. 471

[Irvin v. Susquehanna, &c., Turnpike Co.]

as an implied consideration of the contract. On what principle,
then, are we to recognise it as such ? By the constitution, the
right of the stockholders to everything granted in the charter is
made inviolable ; consequently their rights as corporators are not
to be impaired. But the public welfare being paramount to every-
thing beside those rights, and power to correct errors of location
being essential to the promotion of it, subscriptions are necessarily
subject to it where the contrary is not expressly stipulated. The
objection to this seems to be rested on the occasional hardship of ita
operation ; as an instance of which, a liberal subscription by the
inhabitants of a town named as a point has been put in a strong
light. But the abstract propriety of a principle cannot be deter-
mined by an application of it to masses instead of individuals, or
by the aggregate hardship of its operation in a given case. Such
masses, like individuals, take their measures at their own risk, and
subject to the paramount rights of still greater masses. The fallacy
of the whole seems to be in confounding the motive for entering
into the contract with the consideration of it, for nothing is part of
the consideration that is not regarded as such by both parties, and
nothing but the benefit to be received as a corporator is held out to
the subscriber by the corporation or the state. Of benefit to be
received as a landed proprietor, he has no assurance but his calcu-
lation of the chances, and this, it seems to me, the defendant was
bound to know ; yet he relies on representations by the commis-
sioners that the site of the bridge was fixed by law where it would
be peculiarly advantageous to him. What is that but to offer the
motive which impelled him to subscribe, as a circumstance to influ-
ence the construction of the contract ? It is not pretended that
the commissioners misrepresented any fact which it was material
for him to comprehend, or did not leave him to judge of the perma-
nency of the legislative provisions then in force ; and for all beside,
he was bound to know that, acting under a limited authority, they
had no power to make conditions, or bind the corporation in a mat-
ter not committed to them. As there is, then, no peculiar circum-
stance to distinguish this case, it must be decided on the abstract
nature of the contract. It will hardly be pretended that the man-
agers of a road may not correct errors of location between interme-
diate points, consistently with the rights of previous subscribers :
and I am unable to perceive a reason why the legislature should
not be taken to have reserved a like power over the intermediate
points themselves. An error would be as hurtful in the one as in
the other ; and if an injudicious point may not be abandoned out
of respect for private interests, it must be because such interests
are superior to those of the community, and because the charter
has been grunted for individual emolument, and not the public good.
That is not pretended. On the contrary, a power to correct errors

472 SUPREME COURT [Sunbury

[Jrvin v. Susquehanna, &c., Turnpike Co.]

is conceded to be inherent and indispensable. But how may it be
exercised consistently with the constitution, if it be, according to
the argument, inconsistent with an implied condition of the con-
tract of subscription ? The defendant goes for a rescission of the
contract. But the change of an intermediate point is not a rescis-
sion of the contract, or it surpasses the legislative power. It then
comes to this, that a power conceded on all hands to be an essential
one cannot be exercised without discharging all previous responsi-
bilities, and resolving the corporation into its original elements.
It will be said that no one would be released who had not suffered
a substantial injury. But the legal effect of an alteration cannot
depend on its actual effect, or the extent of the injury occasioned
by it. It is a rudi mental principle of the common la'j that the
violation of a right, without actual injury, entitles the party to
nominal damages. So an estate may be acquired or lost by the
performance or omission of a condition which, in the abstract, is
perfectly indifferent ; and if permanence of location were at all a
condition here, it would be so in favor of .ill who had subscribed,
whether with a view to indirect advantage or the benefit to be had
from the tolls. Let it not be thought that the subscriber assents
to the act which creates the change by embracing the alternative
which it is thought to put within his reach. His assent would
ratify the act, if at all, in all its parts ; and in that aspect there
would be no rescission in the case. Beside, to assent implies a
power to dissent; and what is the alternative that would be pre-
sented? Merely to renounce the benefits of the corporation, or
submit to the new conditions ; and in that predicament the contract
would be as much impaired with his assent as without it. Suppose
he should still insist on the original contract, the consequence would
be a direct collision between an act of the legislature and the con-
stitution. It may be thought unnecessary to view the question in
that aspect, as it may be supposed the defendant has not thought
proper to insist on it. But does lie not insist on it when he refuses
to perform his part of it, because one of its conditions has been, as
he says, violated by the plaintiff? He refuses his assent to the act
of the legislature when he refuses to abide by the conditions it im-
poses, and those conditions must be executed, or an act of the legis-
lature, admitted to be indispensable to the public welfare, must be
rendered abortive. Apply the principle of this supposed assent
to the case of a stockholder, whose subscription has been in part
paid in. According to the argument, he would be released from
further liability. But what would compensate the loss of pay-
ments already made? If the act would really infringe on a condi-
tion of the contract, the privilege of retiring with the loss of a
part of his capital would be no preparation. Give him an action
to recover his money back, and the difficulty still remains ; for the

June 1831.] OF PENNSYLVANIA. 473

flrvin v. Susquchanna, &c., Turnpike Co.]

violation of the constitution is found in the very act which would
make a resort to an action necessary. But the extreme conse-
quences of the principle would be positively destructive, as it
would, for the same reason, give an action to those who had paid
the last farthing, and enable them to withdraw their share of the
capital at the expense of ruin to the enterprise. And thus a power
admitted on all hands to be indispensable to the successful prose-
cution of the work could be exercised after experience had demon-
strated a fatal error in the plan, only by undoing all that had been
done ; which is in effect to say, it cannot be exercised at all. Were

Online LibraryWilliam RawleReports of cases argued and adjudged in the Supreme Court of Pennsylvania (Volume 2) → online text (page 51 of 66)