
    THE STATE vs. MOORE & LIGON.
    '•*. A scire facias is the proper remedy in proceeding under the Act of February 6, 1843, (Clay’s Dig. 515, § 39,) against an incorporated turnpike company for a forfeiture of. its charter.
    -2. The jurisdiction of the-superior courts cannot be-takenaway by mere implication.
    •'•3. The Act of February 4, Í846, (Pam.phlet.Acts, 44,) under which an incorporated turnpike company may be indicted for a failure to keep their road in repair, does not deprive the' State of the right to proceed for a forfeiture under the Act of 1843.
    4. In proceeding by scire facias under the Act of 1843, against an incorporate company, the scire facias should allege that the defendants , procured the-act of their incorporation, or that they accepted it, or acted under -it.
    5. The Solicitor of the circuit cannot, of his own volition, sue out a scire facias against an incorporated turnpike company for a forfeiture of their charter, but can only act under the direction of the Legislature, or of the Attorney General. ‘
    Error to the Circuit “' Court of’Lauderdale. 'Tried’before •the Hon. Thomas A. Walker.
    The Solicitor of the-Fourth Judicial Circuit sued out a scire facias in the name of the State against the defendants, to show cause why a forfeiture of-their .charter should not be declared. The scire facias alleged that the defendants had been authorized by an act of the General Assembly of the State, approved February 3,1846, to-turnpike a certain road which is described, and that they had forfeited their .-charter, both by misuser and non- 
      
      • user. The defendants demurred to the scire facias, andrtheir demurrer.was sustained.
    , AttoRney General, for the State:
    1. The main question-before the court.is as to the sufficiency of the scire facias. The. only requisite of a sci. fa. is that it should contain the same - certainty that a declaration must. It should simply state in methodical and legal form the plaintiff’s cause of action.
    Declaration at the suit, of injured party against corporation, stating that the road was-out of repair, &c., was held good.— Noyes v. Turnpike Co.., 11 Verm. 531; Turnpike-v. Boyde, 2 Harring. 315; .Braden y. Berry, 20 Wend. 55.
    2. Scire facias,, at common law, was the proper-mode where there was a legal existing body, capable of acting, but who had abused their power.
    Information in nature of ,q.uo warranto, -where there is a corporate body de facto only, but who from some defect in their constitution cannot legally exercise their franchise. — 2 Kent. 312; 2 Bacon. Ab. (old cd.) 31 and notes.
    The scire facias appears to deny this to be a legal existing body, capable of acting,'but that it is a body corporate de facto only, and from non-compliance with the requirements of its charter it cannot legally exercise its franchise, and perhaps quo warranto would be the proper-mode.
    Notwithstanding this distinction between scire facias and quo warranto, we are not without authority to sustain a scire facias at common law against a corporation.for a forfeiture of its franchise for neglect,to perform the provisions of its charter, though never a legal existing body..- — 23 Wend, 234; 2 Ashmead, 379 ; 11 Verm. 431; 3 Dev. & Batt. 14; 8 Hum. 235; 1 Dougl. 282.
    3. But we are not not dependant on the .common law for our right to a scire facias against a .corporation for misuser or nonuser. — Clay’s Dig. 515, § 39.
    Non-performance of the conditions of the.act of incorporation is deemed, per se, a misuser that will forfeit the grant at common law. — 23 Wend. 205.
    4. .Has this statute, (Clay supra, act 1843,) been.rqpealed by the act 4tk.Feb. ’46, p. 44.!?
    
      Admit that a proceeding under the act of 1843' was a criminal proceeding, how stands the case 1 Why,- it may be contend-' cd that the enacting of a subsequent statute to the act of 1843-' repealed by implication that act*- But the law never favors the repeal of a statute by implication,- unless the repugnance be apparent, or in their operation they be irreconcilable. — Smiths Com.- 819; 3 Ala. 626. These statutes are not repugnant and irreconcilable, admitting them both to be penal statutes.- The act of 1843 is not repealed.
    Conceding a seife facias under the act of 1843-, issued against corporation for abuse of their powers, purely a criminal proceed--ing, it created no new offence.- To suffer a highway to be out of repair was indictable at common-law. — Arch. Cr.-Pl. 4, and Com.-tL Wilkerson, 16-Pick. 175. A-turnpike is a highway and-in-' dictable.
    And it is a rule of almost universal application.,-that if a statute, fixing a penalty for an offence, do mot either expressly, or by' implication, cut off or repeal the common law punishment for the same offence, it is merely cumulative. — 23 Wend.-244; 5 Por*-82; 5 Ala. 670 ;• Arch. Cr. PL-2.- The act of 1846 would be' cumulative.
    But the act of 1843, authorizing scire facias., is not a crimN fial proceeding,- but a civil proceeding. — State Bank v. State, 1 Blackf. 272; Smith et aL w The State,-7- Por. 494<
    ■ As to the objection that the corporation’may be indicted, that will not be sufficient to hinder a forfeiture of the-franchise. — ' 28 Wend. 243-4.
    Is this statute against the Declaration-' df Rights,- Art. 1, § 1-1, which says,- “ no person shall be proceeded against crimi--nally, by information,” except,- &c.7 — State v.-State Bank, 1 Blackf. 272,
    . If* a scire facias be against the Declaratioii of Rights, a quoJ warranto must be also; the latter is as _ much a criminal pro--coeding as the former, yet the books- abound with statutes of States giving quo warranto as the remedy by which the charters • of corporations are surrendered for- non-compliance.- If the act of 1843 bo unconstitutional,-there would be no way to dissolve a corporation.
    Non-compliance of any-'one of the provisions of the act creating, the corporation will forfeit the charter.- A- franchise is a con-tract as much as an individual contract. If feoffment be mad© .upon lands upon condition of paying rent, for a failure to perform the feoffor may enter. — 28 Wend. 205.
    Here the entering .of a feoffor is as much a .criminal proceeding as scire facias to seize privileges or immunities (which belong to the .Government) from corporations, for not complying with their .contract. — 23 Wend. 205.
    R„ W. Walker and T, M. Peters, contra :
    
    1. The sci. fa. in $his case was not issued “ at the instance of the State,” as required by the statute. It was not ordered .by the Governor, the ¡Legislature* the Attorney General, nor by the grand jury of any county through which the road passed, It was issued by the solicitor mero jnotu. It is contrary to public policy, to lodge a power, so grave in its character and so important in its consequences, with the solicitors of the circuits, to be exercised by them at discretion. Such a construction of the statute violates both its letter and spirit.
    2. This proceeding is in its nature criminal, and the same .strictness of pleading is ¡required ¡as in a penal action. — 9 Wend, 873-4-5-7, .and cases cited; 23 ib, 193, 215, 217, 221, 223, 230; 7 Watts, 181,
    The sci, fa. is fatally defective, 1. Because there is no alie-, gation that defendants accepted the charter, or that they procured its passage. 2. Because none of the facts relied on as grounds of forfeiture are stated positively, but all of them by way of recital, leaving every thing to mere inference, and being throughout so indistinct, uncertain and general, as not to be issuable. 8. Because it does not conclude.cowíra formam statuti, which was essential, our statute on this subject applying only to indictments. Bee on these points, 1 Chitty PL 237 and notes, 373-4; 1 Chitty Cr. L. 231, and cases cited; 2 Lord Raym. 1363 ; 1 Salkeld 375 ; 23 Wend, 215, 221, 223, 254; 6 Ala, 664; 5 Howl. & By. 13 ; 5 G^eenl. 76; 10 Mass. 36 ; 9 Pick, 192; 5 ib. 168 ; 3 Cowen, 1; 1 Hawks, 192; Clay’s Dig, 442, § 26.
    3. Where the grantees of a oharter have not complied with the terms upon which the franchise was to vest, there cannot bo a judgment of forfeiture, and sci. fa, does not lie. Quo war-ranto is the only remedy. The former lies against a corporation 
      de jurer and the appropriate judgment is a forfeiture. The latter lies against a corporation defacto, and-the judgment is ouster. — 2 Bac. Abr. 482.; 5 St.. &. P. 46-7; 6 Sm. & Mar..-599, (611-15;) 2 Ashmead, 349 (379 ;) Yelverton, 192.
    4. The proceeding by sci. fa. -is repealed by the act authorizing indictments against turnpike owners, and by the special provisions of this charter.- — -Acts- of 1845-6, p.- 44, 143; 15 Ala. 746 ; 5 Pike 595, (cited 1 Suppl. U. S.- D; 1987-8 ;) 9 Bac. Ab. 226-8.
   PARSONS, J.

If there has beenn forfeiture of-the charter) it'is clear, under the statutes, that a scire facias is the remedy. The act granting this charter to the defendants contains this language: That said road shall be commenced in one year,, and'.finishcd and put in repair as required by this-act in four years after the passage of the same, otherwise all privileges hereby granted shall be forever forfeited.” The general statute,which is prior in date, enacts that, “ It shall be the duty of the several solicitors in this State, in whose circuit any turnpike road may bo located, to issue a scire facias, at the instance of and in behalf of the State, against any . owner of said road, whenever the provisions of any law creating such franchise shall have been so violated as- to- forfeit the same, by misuser or nonuser, or when the said owner shall have done or omitted any act or acts which amount to a surrender of .the rights, privileges or franchises conferred by the act authorizing the same.” — Clay’s .Dig. 515, § 39. And the next section of the general act, in such cases, requires that the judgment of the court,- when the issue is found .for the State, shall be that the franchise is forfeited. It was the intention of the Legislature to make the sci. fa. the remedy in all such cases, and we think the object has been accomplished by language that admits of no controversy. The Legislature had clear power to prescribe such a remedy and such a judgment.

2. This charter enables the judge and commissioners of roads and revenue, for a particular failure to keep the road in repair, which is specifically stated in the act, to declare a forfeiture. But the Legislature used no language indicating an intention to take away the jurisdiction of the Circuit Court, and the rule is, that the jurisdiction of the superior courts is not to be taken away by mere implication.

3. There is another act, approved 4th'February, 1846,unddr which the defendants might have been indicted and fined if they failed, after being authorized to charge toll, to keep their road in repair, &e. Blit it is evident that the last mentioned act. does not deprive the State of the right of claiming and proceeding for the forfeiture, though it might be a reason for relying, upon an indictment and waiving the forfeiture, but this is at the option of the State. .

. 4. But we think the scire-facias was wholly defective in one point and uncertain in others, and therefore we think the demurrer was properly sustained.. The charier is a mere authority and so expressed. If the Legislature had undertaken to compel the defendants to construct the road, upon the terms and conditions of the charter, we should have looked into the question of its power to do so. The charter is an authority which did not become a contract with, or binding upon the defendants, unless i-t'had in some manner been-acceptcd. If the sci. fa. had stated! that they procured the act, or accepted it, or acted under it, the case would have rested upon a different foundation. But nothing of the kind is alleged,, and consequently, according to all analogy and precedent, there was no cause of action stated.— Lil. Entries, 411. It is not necessary to pursue the sci. fa: further, with reference to its defects and uncertainties.

5. The counsel of the defendants argued that the solicitor of the circuit could' not proceed in such a ease as this of his own volition, but that he must move onty at the instance of the State.This is clear from the language of the act. That the act was drawn in view of the common law, and stands in harmony with it, will appear by reference to that law.

In England, informations lay-against persons for misdemeanors, and were, in those cases, criminal proceedings. The practice of filing them existed at the common law, and may be traced to the earliest periods. Informations for offences more immediately affecting the King, his ministers,.or the State,, were filed ex-officio by the Attorney General,, while those in which a private individual was virtually the prosecutor, were placed on record by the King’s coroner or master of the crown office» Each of these officers had, and the attorney general still has the power of thus accusing the subject at his discretion. But the statute _ ©f IV. and V. William and Mary, c. 18, reduced the coroner to a Caere ministerial officer, and the informations exhibited by him in ■the crown office were subjected entirely to the Court of King’s Bench. Criminal informations at this day are of two kinds, (in England,) those fixed ex-officio by the attorney general, at his «ole discretion, and those prosecuted by the coroner or master of the crown office, by leave of the court according to the statute. Chitty’s Grim. Law, 843-4-5, where the' authorities are cited. ‘S£A franchise is a royal privilege in the hands of a subject,” and proceedings against individuals for exercising them without, or contrary to the King’s grant, are, where the King alone is -concerned, under the direction of the attorney general. The ancient writ of quo warranto was the remedy. This was the -origin of informations in the nature of a quo warranto at the common law. These also are 'filed by the attorney general of his own authority, or by the King’s coroner, commonly called ;the master of the crown office, formerly of his own authority, ¡but since the statute of IV. and 'V. William and Mary, c. 18, under sanction of the Court of King’s Bench. — 3 Burr. 1616 ; .Angelí& Ames on Cor.p. 606. 'The statute of IV..and V. Wil-Siarn "and Mary is not in force in this State, and we have none like it that can possibly affect this case,; consequently the discretion of the State to proceed or not to proceed for the forfeiture, is .not placed in the hands of any of our courts, and it has already .appeared that they cannot derive it from the common law. The scire facias to repeal the King’s letters patent, for any cause of forfeiture that may have occurred, is analogous to the ease before us. In that .ease .also, there was a discretion to claim or jfco'waive the forfeiture. In such eases, ££ previously to suing out the writ, a petition or memorial must he presented to his majesty, and a warrant obtained thereon to the attorney general, upon which he will grant his fiat for suing it out; hut, it is said, that when a patent is granted to the prejudice of a subject, the King of right is to permit him, upon petition, to uso his name for the repeal of it.” — 2 Tidd’s Prac. 1094. The case before us, however, is one not affecting the rights of any particular individual. It is clear that the State here is the source of all such franchises, to be granted or withhold by the Legislature at its discretion. But if, under our law, a forfeiture must be exacted for every act done or omitted which, in strictness, is a cause of forfeiture, then our law is obviously defective; and it is not only defective, but wrong, if this high discretion may be exercised by persons who, with regard to it,. are not the representatives of the State. The language of the act plainly shows that the Legislature-did not intend to confide this discretion to the solicitors; but, on the contrary, it was the manifest intention to withhold it from them. They were to act u at the instance of the State,5’ which excludes the ide'a of their a'cting Upon their own will or discretion. But I feel some’ difficulty in the question, who is to represent the State in this. matter of discretion 1 It is clear that the "Legislature may do so, but if the discretion is confined to the Legislature, the greatest abuses may exist for a serious length of time, before they can be redressed. This could not have been intended. The solicitors were to proceod “ at the instance of the State.’5 This language,"which refers the discretion to no particular department or officer, was, however, used with direct reference to the common law, where, in the case of informations in'the-nature of a quo warranto, the attorney general held the discretion. The ellipsis in the statute •may, therefore, be filled up from the common law, and the result is that the solicitor, in such cases, may proceed at the Instance of the Legislature or of the Attorney General, In’this view we are sustained by the opinion of a great American judge, who •said, in the case before him, 'M But an information for the purpose of dissolving the corporation, or of seizing its franchises, cannot he prosecuted but by the authority of the commonwealth^ so be exercised by the Legislature, or by the attorney or solicitor general, acting under its discretion or ex-o fficio in its behalf ; for the commonwealth, may waive any breaches of any condition expressed or implied, on 'which the corporation was created, and we cannot givo judgment for the -seizure by the commonwealth of the franchises of any corporation, 'unless the •commonwealth be a party in Interest to'the suit, and ’tlnis'as-senting to the judgment.”—Com. v. Union Ins. Co., 5 Mass. 230.

We do not decide that our Attorney General, as an officer of •íítate, can derivo his powers from the common law, but We decide, by construction of the act in reference to the common law, which the Legislature evidently had in viejv, that the Legislature intended to confer tins high discretion upon'liirn, to be e.ter* «ised in its behalf justly and impartially.

The .judgment is affirmed.  