
    The Commonwealth v. The President and Directors of the James River Company.
    Corporations — How Charter Nullified. — An Information in the nature of a Quo Warranto, is the proper remedy by which to try and decide whether the Charter of the James River Company ought to he nullified and vacated, or whether it has forfeited its privilege of receiving tolls.
    Same — Commonwealth Stockholder — Quo Warranto. —The Commonwealth being a stockholder in a Corporate Company, and partner with individual stockholders, is no reason why she should not, in her sovereign capacity, proceed by way of Information in nature of a Writ of Quo Warranto, against the Corporation for the purpose either of destroying its Charter, or depriving it of any of its franchises.
    Same — Quo Warranto. — The Information aforesaid will lie against the Corporation eo nomine to try whether the said Company hath forfeited its franchise of being a Corporation, as well of its other franchises and liberties.
    Same — Same — Jurisdiction. — Where the Commonwealth proceeds by Information in nature of a Quo Warranto against a Corporation, the Superior Court of Law in which the President and Directors of the Corporation reside, has j urisdiction to grant the rule, and try the cause, although the acts of violation of duty which are the grounds of the proceeding may have been committed sparsim in other counties.
    The Attorney General, on behalf of the Commonwealth, obtained a rule from the Superior Court of Law for the county of Hen-rico, against the James River Company, commanding the President and Directors of the said Company to appear before the said Court, and shew cause, if any they could, why an Information, in the nature of a writ of Quo Warranto, should not be filed against the said James River Company, its President and Directors, to nullify and vacate their Charter, and to prevent their receiving tolls : 1. Because they have failed to make said river well capable of being navigated in dry seasons by vessels drawing one foot water at least, from the highest place practicable to the great falls beginning at Westham. 2. And because they have suffered the navigation to be, and remain obstructed by rocks, gravel, and other obstructions in said *river, which render its navigation extremely difiScult and dangerous. 3. And because they have failed, at or near the said great falls, to make such cut or cuts, canal or canals, with sufficient locks, and to keep the same in repair, each of eighty feet in length, and sixteen feet in breadth, as will open a navigation to tide water in all places at least twenty-five feet wide, (except at all such locks,) and capable of conveying vessels or rafts drawing four feet water at the least, or in said canals, boats drawing four feet water in ordinary seasons, or one foot water in dry seasons, into tide water, or to render such part of the river navigable in the natural course ; which they were bound to do by the Acts incorporating and regulating such Company, and by the Laws of the Commonwealth.
    The Prosecution was instituted in conformity with the Resolution of the General Assembly, passed on the 25th day of February, 1818,  directing such prosecution in the proper Court.„
    The rule was founded on the affidavits of numerous witnesses, the tendency of whose evidence was to prove that the Company had failed to perform all those duties which are specified in the rule. On the return of the rule, the Company appeared, and time having been given to them to procure evidence for the purpose of shewing cause against the rule, they also produced an immense body of evidence, the tendency of which, however, was not to shew that they had discharged their duties, but to afford an excuse for nonperformance : that excuse being founded on the impracticability in dry seasons of making the bed of the river of the required depth, and from the effect of floods at other times, sweeping off their improvements and rendering their perpetual efforts, to comply literally with the Charter, unavailing. The affidavits also proved, that the Company had expended great sums, and had made serious and constant efforts to improve the navigation. It is deemed unnecessary to spread the evidence itself, or to make a more particular statement of it.
    The Superior Court of Henrico considering the Case as one of great and general importance, and involving questions of novelty, and difficulty, adjourned the same to the *General Court for their opinion, and decision, on the following questions:
    1. Is an Information in the nature of a Quo Warranto, the proper remedy by which to try and decide whether the Charter of the James River Company ought to be nullified and vacated, or the said Company prevented from receiving tolls ?
    2. Does the interest which the Commonwealth holds in the stock of the James River Company, present a bar to this proceeding against it ?
    3. Has the Superior Court of Haw for Hen-rico county jurisdiction in this Case, it being admitted that the President and Directors are residents in said county ?
    4. Ought the rule against the Defendants in this Case to be made absolute, and leave given to the Attorney General to file the Information, or does the evidence exhibited by the Defendants shew sufficient cause why the Information ought not to be filed ?
    5. All other questions which may arise out of the rule, and the evidence.
    Mr Heigh, argued the Case for the Company.
    He premised by saying, that this rule was founded on a Resolution of the General Assembly, but that the Attorney General had proceeded one step further than that Resolution. That, directed a proceeding to shew why the tolls should not be taken away from the Company : this rule also requires them to shew why their Charter should not be vacated.
    The rule consists of three branches; to the second and third of which the Company ought not to be compelled to answer. The second branch is, why they have suffered the navigation to be, and remain obstructed by rocks, gravel, &c. whereby its navigation is rendered difficult and dangerous. Now, by the 18th section of the Charter,  it is provided that the tolls and Charter may be forfeited for not completing the improvements. If the improvements have been once completed, no forfeiture can accrue for failure to keep those improvements in repair: such is no part of the undertaking of theCom-pany. Nor could the *Degislature intend it. They must have known, that however completely the Company may have improved the bed of the river, yet that a succession of freshes would fill the bed wi.h gravel, and for a time destroy the improvements : and yet, should this act of God cause a forfeiture ! By no means. Whether this proceeding be one of a civil or criminal nature, yet as a forfeiture is a consequence of a judgment, the Haw ought to be construed strictly ; and therefore the 18th section could only be construed to cause a forfeiture for not completing the improvements, and not for a failure to keep them in repair.
    The third branch of the rule is, that the cuts, canals, and locks at the Great Ralls, are not made, as to give four feet of water in the canal. But, by a Haw subsequent to the Charter, the depth of water in the canal is made to depend on the discretion of the Company ;  it need not, therefore, be four feet. It is unnecessary, therefore, to say any thing on these two branches of the rule : the first branch, which regards the making of the river one foot deep in the dryest seasons, to the highest navigable point, is the only question that ought now to be considered.
    He said, that the Hegislature had, from time to time, appointed Commissioners to view the state of the river, and directed them to make report. The object of these appointments was to ascertain whether the Company had complied with its Charter. The Act of 1812, ch. 33, was one of the last Acts by which Commissioners had been appointed. He contended, that the only remedy which the Heg-islature could now pursue, was to resort to that Tribunal which themselves had created. It was a rule of Common Haw, that in the Case of Statutory offences, where a particular method of carrying on a prosecution is pointed out, that particular method must be pursued, and no other. 2 Burrow, 803; 1 Burrow, 543. At all events, the report of these Commissioners was the only evidence on which a prosecution could be founded. It is true, in point of fact, that those Commissioners have not reported; but whose fault is it ? Surely not that of the Company.
    He contended, that the Commonwealth was barred from proceeding by writ of Quo Warranto against the Company, *by virtue of the interest which she herself held in the stock of the Company. He said there were only 700 shares, of which she holds 250; the Literary Fund, 106; the Board of Public Works, 34; Lexington College, 100; these last all granted by the Commonwealth; and William and Mary College, 22; making 512, and leaving 188 only, for individuals, including widows and orphans. The Commonwealth is partner with those public Companies, and individuals. Suppose she was the owner of all the shares, and thereby was also sole manager of the affairs of the Company ; would a Quo Warranto lie in that case ? Surely not. How then can it lie, when she is partner with others ?
    He considered this a strange prosecution. It is one carried on by the Commonwealth, principally against' herself, and yet what may be the result ? If the Charter is declared to be forfeited, she seizes into her own hands, the franchises of the Company, and thereby becomes sole gainer ! She loses nothing by taking her own shares, but gains the whole of the shares of her partners. The interest of the Commonwealth is held per my, et per tout, with the other shareholders. Her 250 shares cannot be separated from the rest. He maintained, that the King of England could not proceed to forfeit the property of George Guelph. So, neither could the Commonwealth, in her Sovereign capacity, forfeit to herself, her own property ; and, consequently, not the property of individuals, held by them in common with her.
    He argued, that the Circuit Court of Hen-rico has no jurisdiction in this Case. This depends on whether it is a Civil or Criminal proceeding.
    The Common Eaw remedy of Quo War-ranto is a Criminal proceeding. The Writ, in nature of a Quo Warranto, to try a Civil right, if not altogether founded, is at least reformed, and the manner of proceeding on it regulated by the Statute of Anne, in England, which has never been in force in this State.
    The object of this Prosecution is to produce a forfeiture of the franchises of the Company ; to inflict a heavy penalty for their alleged transgression; to impose a' fine upon the Company ; and is conducted by the Eaw-Oflicer of the Commonwealth. It is, to all intents, a Criminal Prosecution. Hawk B. 2, ch. 26, § 7. If, then, the Henrico Superior Court has jurisdiction, it must be by virtue of its Criminal jurisdiction. By the Circuit Court Eaw, second section, *those Courts have jurisdiction of of-fences committed within the limits of their respective counties. There is a wide difference between Civil and Criminal jurisdiction. In the former case, the residence of the party, as well as the cause of action, gives the jurisdiction ; in the latter case, the jurisdiction is limited to offences committed within it, the residence of the criminal never giving jurisdiction. In this case, the offence is not alleged to have been committed in Henrico, but sparsim through the whole extent of the river above the falls : if any Court has jurisdiction, it must be the General Court.
    He said, that to every Corporation belonged two species of franchises : its great and subordinate franchises. Its great franchise is its right to existence; its life. Its lesser franchises are its privileges, rights, property. You cannot proceed by one and the same proceeding against the Corporation to deprive it of its existence ; and to seize its subordinate franchises. They are incompatible and repugnant objects : and for that reason, if for no other, this rule should not be made absolute. A Corporation may be deprived of its subordinate franchises, and yet still entitled to its greater franchise, its life ; as in the natural body, you may deprive it of its liberty, or its property, and yet spare its life. The judgment in the two cases is different; in the first, it is quod extinguatur; in the second, that its franchises be seized. Smith’s Case, 4 Mod. 58.
    If the object of the rule be to destroy the Charter ; that is, to deprive the Corporation of its life, the rule should have been granted against the individuals who compose the Company ; not against the Corporation eo nomine. You cannot call on the Company, which supposes its existence, to shew cause why it should not exist. He referred to Howell’s State Trials, vol. 8, p. 1039 ; also, to Kyd on Corporations, vol. 2, p. 487-91.
    Messrs. Nicholas, and Robertson, Attorney General, for the Commonwealth.
    They maintained, that the distinction taken by Mr. Eeigh, between the proceeding against the Corporation eo nomine, when you seek to forfeit the lesser franchise, and against the individuals, when you seek the vacation of its great franchise, was metaphysical and unsound. If you proceed to take away all its privileges, one by one, it is the same in effect as if you take away its existence. It is nugatory, and unjust, in either case, to require proceedings *in personam; nugatory, because you cannot proceed against all the members of a large Corporation, scattered, perhaps, through every county of the State, or through every State in the Union ; unjust, because the offence, (if offence it can be called,) is committed essentially by the Corporate Body, and not by the individuals composing it. The proceeding is always had against the Corporation itself. 2 Burrow, 869 ; 5 Massach’s Rep. 230 ; Rex v. Avery, 2 Term. Rep. 521. In the Case of the City of Eondon, referred to by Mr. E. in Howell’s St. Trials, the proceeding terminated in forfeiting the Charter, and they went against the Corporation eo nomine. The Case in "4 Mod. 58, does not prove that the Charter may not also be destroyed by proceeding against the Corporation eo nomine.
    As to the objection that the Prosecution cannot be carried on because the Commonwealth is a shareholder, they said ; that the Commonwealth holds two characters. She is a Sovereign, and she is a stockholder. She prosecutes in the former character ; in that character she has a higher interest than that of pounds, shillings and pence, the interest of compelling Corporate Bodies to perform their duties. Her conduct is magnanimous, because she is willing to sacrifice her interest as a stockholder, to her interest as a Sovereign. Establish the position that the Commonwealth cannot prosecute in a case like this, because she is a stockholder, and what is the consequence ? All these Corporations are absolutely irresponsible ! They may do what they please, and yet not forfeit either their Charters, or their privileges ! Such a doctrine is not to be tolerated. In point of fact, however, they said, she is not now a stockholder, having transferred all her shares to the Lexington College, to the Literary Fund, and Board of Public Works, all of which are Corporations, capable of suing, and being sued.
    As to the jurisdiction : They said that the offence of a Corporate Body does not depend on its locality. It does not commit a crime, or misdemesnor, nor even a trespass. It fails to do its Corporate duty, and for this failure, wherever it may take place, it is liable to lose its privileges, and even its franchise of being a Corporation : this failure is a Civil injury, for which the redress is a Civil remedy, and like other Civil remedies, it must be carried on in that county where the Defendants (that is, in this case, the President and Directors, who are the proper persons to sue and be sued,) reside. To prove it a Civil remedy, they referred to 3 Black. Com. 263 ; 4 Black. Com. 312; and *4 Term. Rep. 384, where a new trial was granted to the prosecutor, because it was a Civil remedy. But even if it was a Criminal proceeding, shall we be precluded (they asked,) from shewing that an offence has been committed within the county of Henrico ?
    They contended, that in this preliminary investigation, the Court will not refuse to make the rule absolute, when there are difficult points, either of Law, or fact, growing out of it. 3 Bac. Ab. 644; Cowp. 58; Doug. 97. They then adverted lo the deposition to prove, that the Company had not complied with their Charter.
    They contended that the Act of 1812, referred to by Mr. L. did not furnish a Statutory remedy, but merely granted an indulgence. It does not say, that if no view takes place, the remedy shall be taken away. The Commissioners appointed by that Act, are not appointed as judges, or arbitrators, but merely as witnesses. But even if it were a Statutory remedy, it need not be pursued, because the wrong being a Common Law wrong, for which there was a Common Law remedy, and this remedy being- cumulative, the Commonwealth has her election which to-adopt.
    
      
      
        See foot-note to Com. v. Birchett, 2 Va. Cas. 51: Shumate v. Supervisors, 84 Va. 579, 5 S. E. Rep. 570, where the principal case is cited.
    
    
      
       Acts of 1817-18, p. 225.
    
    
      
       See the Charter in 1 Rev. Code of 1792, by Pleas & Pace, Appendix, p. 440-6.
    
    
      
       Acts of 1785, ch. 52, p. 37; Appendix, No. 1, to 2 Rev. Code of 1808, ch. 4, § 2, p. 3.
    
   The Court,

after mature examination of the Law, and the evidence, entered the following opinion, and judgment:

“The Court is unanimously of opinion, that the Information in nature of a Quo Warranto, is the proper remedy by which to try and decide whether the Charter of the James River Company ought to be nullified and vacated, or to prevent the Company from receiving tolls:
“That the interest which the Commonwealth holds in the stock of the James River Company, presents no bar to this proceeding against it :
“That the Superior Court of Law for the county of Henrico has jurisdiction in this Case :
“That the rule in this Case ought to be made absolute, and leave given the Attorney General to file an Information in the nature of a Quo Warranto:
“And that the Information in nature of a Quo Warranto will lie against the Corporation of the James River Company, eo nomine, to try whether said Company hath forfeited its franchise of being a corporation, as well as its other franchises, and liberties : which is ordered to be certified,” &c.  