Opinion
July, 1822.
The bill states that the Company became incorporated in virtue of an Act of the General Assembly entitled, "An Act to incorporate a company for cutting and opening two canals to facilitate the navigating of Christiana creek," (passed January 29, 1821, 6 Del. Laws 45) one to be cut through the marsh and low grounds of Jeremiah Lewden by a straight line forty-six points in length; the other to be cut through the wild marsh of Samuel Johnson. That the canal through the marsh and low grounds of Lewden has heretofore been cut and opened by said Company so that the navigation thereof is rendered easy and convenient.
Manuscript reads, "5."
And the plaintiffs further show that by section 10 of the said Act it is enacted (here the 10th section is recited so far as it relates to Lewden. 6 Del. Laws 53).
Manuscript reads, "5."
That after the completion of said canal through the marsh of Lewden, the president and managers, on behalf of said Company at the request of Lewden, on July 26, 1821, chose Archibald Alexander a referee, and Lewden chose John Platt, and they mutually chose John Stockton to assess Lewden's damages, if any, pursuant to said Act, after being qualified. That said referees met, and after hearing the parties etc., on August 1, 1821, made the award in writing and affixed their hands and seals thereto and valued his damages at $45.00. Referees were qualified etc. That David Nivin, president of said Company, ordered Abraham Egbert, the treasurer, to pay over said $45, and so said matter was acted on and settled and completed. (It is not said that the money was paid or tendered, or accepted by Lewden.) And plaintiffs charge that said award was made conformably to the Act of Assembly and is good and conclusive.
And plaintiffs further show that after opening said canal through Lewden's marsh, the wild marsh of Samuel Johnson was explored by the president and managers of said Company, and it appeared that a canal cut through said marsh where prescribed by law would not improve and facilitate the navigation of said creek in that part, whereupon the Company declined opening the canal through the wild marsh of Johnson; and by petition or memorial, applied to the legislature at their session in January, 1822, for a supplement to the Act, empowering them to select another and different route for said canal. Such application was accompanied with a draft of a bill to be enacted into a law, comprising two sections, providing by the first section that the Company should receive for the passage of shallops two kinds of the rate of toll, and for scows and rafts the rates of toll mentioned in the original Act, through the canal leading through the marsh of Lewden when opened and completed, with a proviso saving to the Company the right of demanding the whole toll from shallops, as in [the] original Act, as soon as said two canals should be made and completed. And providing by the second section that when said Company should deem it expedient to open the lower canal through the lands of Samuel Johnson as in section 5 of the original Act, the said Company should be authorized to enter upon as well the improved as the unimproved marsh etc. of Samuel Johnson adjacent to said canal with free ingress, egress and regress in and upon the same while employed in surveying and laying out said canal. Damages to be paid as in 10th section (6 Del. Laws 53, 54).
Manuscript reads, "5."
That said petition and draft of a supplement containing the two sections aforesaid was introduced into the House of Representatives and there passed, and sent to the Senate for their concurrence. There (in Senate) without the knowledge of the Company, at the instance of Lewden, an amendment was introduced forming sections 3 and 4 as the bill was passed, which amendment was in the following words (here the 3rd and 4th sections are recited as in the Act, 6 Del. Laws 190, 191). That said supplemental bill, so amended by adding sections 3 and 4, passed the Senate on Saturday, February 3, 1822, and was the same day returned to the House of Representatives. That on Monday, 5th of February aforesaid, said House concurred therein, and [it] was in that form finally passed into a law. And the said Canal Company charges that said supplement was amended without consent or notice of said company and without authority of the same, and is an invasion of the chartered rights of said Company granted and secured by the first aforesaid Act of the said legislature, which cannot be destroyed, impaired or derogated from by any subsequent Act of the said Legislature without the consent of the said Company, and is therefore unconstitutional and void. That among the chartered rights of said Company was the ascertainment and fixing the damages, if any, that might be sustained by said Jeremiah Lewden and Samuel Johnson respectively by reason of cutting and opening the said canals as aforesaid in the manner prescribed by the 10th section of the said original Act of Assembly, and in no other manner. That in pursuance of the provision in 10th section three referees were chosen, who reported in writing as to Lewden's damages, which determined the right of matter of damages between said Company and said Jeremiah Lewden as prescribed by said 10th section; thereupon the said award concluded the said parties in relation to said matter of damages by cutting etc. said canal, nor could said report be set aside but in the course of regular judicial proceedings on the ground of an available exception taken thereto.
Manuscript reads, "5."
The legislature could not by the supplementary Act infringe, abrogate or vary any part, section or provision of said original Act, the charter of the Company. And all proceedings instituted or acts done under authority of said charter must derive their efficacy from, and be alone subject to, its regulation and control. The 3rd and 4th sections of the supplemental Act are unconstitutional.
The said Company further charges that the Legislature usurped the functions of the Legislature by the amendment in section 3 (6 Del. Laws 190) standing the report in the first reference, while it remained, as it still does, in full force and un-impeached, by directing any judge of the Supreme Court, on the ex parte application of said J. Lewden in Vacation to appoint referees to ascertain said J. Lewden's damages etc. and to make report to the Supreme Court, which was done, and a double charge created and fixed on said Company of damages for the same act and work.
Manuscript reads, "5."
And the said Christiana Canal Company further represents that Lewden, intending to injure and defraud said Company etc. on February 27, 1822, obtained from J. Davis, Esq., one of the judges of the Supreme Court, an order without notice to said Company by which he appointed, under the 3rd section of said supplementary Act, John Harlan, William G. Caulk and James McCullough to assess the damages of said J. Lewden in the form prescribed therein, and to make report etc. Then the said John Harlan, William G. Caulk and James McCullough, by an instrument in writing under their hands and seals dated March 30, 1822, reciting their appointments etc. assessed the damages of said J. Lewden to $435.37 to be paid by the Company to said J. Lewden. That the report was returned to the Supreme Court on April 2, 1822, and was then read and judgment nisi rendered thereon as more fully appears by Schedule B, a true copy thereof. And that within about ten days after said judgment on said last mentioned report, a fieri facias was issued from said court to Sheriff of New Castle County to levy the said $435.37 on the goods and chattels of said Company, and J. Lewden threatens to levy said money, etc.
Footnote by Ridgely, "It is not charged in the bill that the Company had not notice of the meeting of the referees, and of the award, and report made to the court. But in page 17 these interrogatories are put, whether the Company or any of its members had notice given to them of the application to Judge Davis, appointment by him of the referees, or of their meeting or meetings, and how many they had under color of its authority; or afterwards of the report or award thereupon made as aforesaid, or of its return afterwards to the said Supreme Court, at April 1822, or of application for judgment on said award."
The Canal Company suggests that said execution is illegal and void, and is an attempt to obtain from said Company by a fraudulent contrivance the said sum of money. But now so it is etc., the said Jeremiah combining, etc.
The said Christiana Canal Company expressly charges and insists that 3rd and 4th sections of said supplemental Act are void because contrary to the Constitution of the State of Delaware, inasmuch as they violate and infringe important chartered rights of said Canal Company; and moreover, that said award, founded on a reference under color of said 3rd section, is illegal and void, and contrary to equity and justice that a second reference and award should be made between the same parties touching the same subject matter of dispute which the first award aforesaid made upon the premises, concluding the merits of said matter of damage, existed and continued in full force and vigor, and which could alone be impeached and set aside for cause in a course of judicial proceedings. And the said J. Lewden pretends that said award and judgment are superior to all exceptions, and that the execution ensuing, the nature of the judgment must have the effect of coercing said Company to pay the money recovered by said judgment. Whereas the said Christiana Canal Company charges and insists that the judgment follow the fate of the award, and that being void and illegal, it (the judgment) must be so too, and that the said execution must consequently be avoided and defeated, and that therefore it is unjust and against conscience to urge the levying the money thereby directed to be levied; especially the said execution by fieri facias not being the proper and legitimate process in suchlike cases used and approved, but the writ of distringas, and which is an additional ground for the interposition and exercise of the restraining power of the Court of Chancery. All which actings and doings and pretenses of the said Jeremiah and other confederates are contrary to equity and good conscience, etc.
In tender consideration whereof, and forasmuch as the strict rules of the common law preclude the said Company from relief, and the said Company is only relievable in the Court of Equity, to the end therefore, etc., the prayer is, that the said Act supplementary to the said original Act, or the said 2nd and 3rd sections of the said supplement be decreed by this Court to be unconstitutional and void; and that the aforesaid order of Judge Davis made on the application and in behalf of the said Jeremiah Lewden and proceedings aforesaid had thereupon, the return thereof to the Supreme Court for New Castle County, judgment rendered as aforesaid, by that court and execution by fieri facias aforesaid are coram non judice, extrajudicial and unconstitutional and therefore void; and that a perpetual injunction issue to enjoin and restrain the said Jeremiah Lewden, his attorneys, counsellors, confederates, agents, and other persons from taking any benefit or advantage of the said order of Judge Davis, or of the other proceedings, acts, orders, awards and judgments of the Supreme Court aforesaid touching the said matter of damages or further proceedings thereon or upon the said execution by fieri facias, or future executions of any nature whatsoever, and from levying and obtaining payment of or from the said Company in any manner whatsoever of the said $435.37 specified in the said second award, or any other sum of money by sale or otherwise of the goods, effects, or other property of the said company, and that said Christiana Canal Company may have such further and other relief, etc. Then a prayer for a subpoena, and for a writ of injunction to be directed to said Jeremiah Lewden, his counsellors, attorneys, solicitors and agents and to David C. Wilson, Sheriff of New Castle County, to stay proceedings at law on said judgment, etc.
The bill is signed by David Nivin, President, with a seal; and is attested by Abraham Egbert, Secretary. And is sworn to by said Nivin and Egbert.
NOTE. By the Act of Incorporation, 6 Del. Laws 45, 46, s. 2, it is enacted that when and as soon as 120 shares in the said capital stock shall have been subscribed, the subscribers, their successors and assigns shall be, and hereby are created a body corporate and politic, in deed and in law, by the name, style, and title of The Christiana Canal Company, etc. Now it does not appear by the bill or otherwise that 120 shares have been subscribed. The Company was not incorporated immediately on passing the Act, nor at any time until 120 shares were subscribed. And if the incorporation of the Company depended on the previous subscription of 120 shares, and it is not shown that that number of shares has been subscribed, have the plaintiffs a proper title to sue as a corporate body? If the plaintiff has not a proper title to institute a suit concerning the subject of a bill, a demurrer will hold. Mitf.Pl. 137. 1 Bac.Abr. 500, 501, title "Corporation" (B.), by a special Act of Parliament it was enacted that there may be built one meet house etc., that the same may be called etc., and the Lord, etc., and the said governors etc. shall forever hereafter be incorporated etc.; it was resolved that no hospital was incorporated by this Act, because all the words are de future See 10 Co. 25, 26. But a corporation in futuro may be good; but not an estate or interest which none can take without a present capacity.
Manuscript reads, "5."
[THE CHANCELLOR.] If the supplementary Act is unconstitutional and void, so are all the proceedings, and the judgments bottomed on it. Will not the corporation then have a remedy at law if their goods are seized and sold? An injunction when awarded does not deny, but admits the jurisdiction of the court of common law, and the ground upon which it issues is that they are making use of their jurisdiction contrary to law. 1 Atk. 516. But if the Act is unconstitutional, the Supreme Court has no jurisdiction. But how can this Court reverse the judgment of the Supreme Court by decreeing that it was coram non judice? Would this judgment, if it and Act of Assembly are absolutely void, justify Lewden in an action of trespass?
August 29, 1822, this case being mentioned, and the Chancellor having suggested the above doubts, Mr. Read, Jr., moved to amend the bill, which was not objected by McLane for defendant; so the bill was ordered to be amended.