
    The Pennsylvania and Ohio Canal Company v. The Board of Commissioners of Portage County.
    1. The special act of March 20, 1867 (64 Ohio L. 285), in so far as it authorized the Pennsylvania and Ohio Canal Company, upon certain conditions, to abandon a portion of its canal, is a permission to surrender corporate power, not an attempt by special legislation to confer corporate power, and is, therefore, not in conflict with section 1, article 13, of the constitution of Ohio.
    2. The proviso in said act is as follows: “Provided, that such abandonment shall not be construed to release the said Pennsylvania and Ohio Canal Company from any liability or contract incurred or entered into, nor defeat the rights of any person or persons, company or corporation.” . . . Held, this proviso is for the protection of private rights, and does not refer to such duties as are simply owing to the public.
    3. Under the obligations of its charter, it was the duty of the canal company to keep in repair bridges over highways. After the abandonment under the act above mentioned, it omitted to make repairs. Held, such omission gave the county commissioners no right to make such repairs and charge the expense thereof to the canal company.
    Error reserved in the Bistrict Court of Portage county.
    
      A. G. Voris, for plaintiffs in error :
    I. The duty created by section 10 of the act of January, 1827, to builcl and keeps in good repair bridges over the canal where these roads were passed by the same, certainly did not impose a duty where there was no canal; nor does it make it obligatory on the canal company to fill up or make culverts when the canal has been legally abandoned— i. e., where there is no canal.
    The public use demanding a public road, and the public use requiring a public canal, authorized the use of the lands where these bridges were located. The security and convenience of public travel on the public roads demanded the construction and repairing of these bridges, and, balancing the conveniences, the legislature saw fit, purely as a matter of expediency, to make those having the immediate benefits of a public canal, by and through the tolls they paid, to be at the expíense of constructing and keepfing these bridges in repair, charging the public convenience of having a public canal with the burden of keeping the bridges in proper order for the public convenience of those using these roads.
    But public necessity was the only warrant for this expenditure. It would be antagonistic to our ideas of a propier administration of public affairs to impose such a burden, unless there was an adequate public demand for it. The act of incorporation goes on that most just theory, and whenever that necessity ceases, the reason for the exaction fails, and the obligation no longer has any force — the duty is discharged.
    II. The defendants in error, however, seek to do away with the effect of this act, by saying that it is in contravention of section 1, article 18, of the constitution. But saying so does not make it so.
    So far as the last-mentioned act affects the case at bar, and that is all with which we have to do, it relates to the power of abandonment, and nothing else. Conferring the power to abandon is in no sort a corporate power, though given to a corporation. It is a power that natural persons and private corporations may exercise at their pleasure, only being answerable for the abuse of that power. It comes within none of the definitions of corporate powers.
    The canal company had this power without the enabling act of 1867. The only reason for invoking legislative permission to abandon the canal, or parts thereof, was to save the company from the forfeiture provided for in section 25 of the act of incorporation. It could not abandon without incurring disabilities,-from which it could be relieved by no power but that reposed in the legislature. The effect of the act of March 20, 1867, so far as the abandonment is concerned, was to relieve against the disability of forfeiture, nothing more, nothing less. The power to abandon in good faith always existed in the canal company.
    To say that this act, thus far, is unconstitutional, is not .reasoning within the law, or any sensible construction given thereunto.
    III. It is, however, claimed that though the abandonment' of the canal was properly made, it was done under conditions that the same should not be construed to release said company from any liability or contract incurred or entered into, nor defeat the rights of any person or company, etc.
    This is just as it should be; but what liability is here referred to ? The obligation upon which the judgment was rendered does not exist in contract, nor could its abrogation legally defeat the rights of any persons or corporations ; but simply existed in the liability created by section -10 of the act of incorporation, which implied a duty to do what ? Among other things, to build and keep in good repair certain bridges over their said canal, for the benefit of the public, not for any individual persons or corporations, that could be annulled or abrogated at any time by the power creating the liability. It was nothing else. But the agreed statement of- facts shows that no canal existed at the time the cause of action is laid; therefore no liability existed to build and keep in good repair bridges over said canal. This is a complete answer to the claim that the liability still exists. ■
    
      
      J. JD. Horton, for defendant in error:
    I. I claim that the act of March 20th was in violation of section 1, article 13, of the constitution of Ohio, and conferred on the canal company no authority whatever; that the actions of the company under said act, taken for the purpose of effecting such abandonment, were unauthorized and void; and that the pretended' abandonment of a portion of the canal was unauthorized and in violation of its charter, and conferred on it no rights and released it from no obligations. (
    Section 1, article 13, of the constitution, is in these words:
    “ The general assembly shall pass no special act conferring corporate powers.”
    It can not be questioned the act of March 20,1867, is a special act. It is entitled “an act to-authorize the stoekholdei’S of the Pennsylvania and Ohio Canal Company to abandon, lease, or sell any portion or portions of said canal,” and the entire act is specially and exclusively for the purposes indicated in its title. It is essentially a “ special act,” and nothing else.
    It is also a special act “ conferring corporate powers,” for the entire power under and by virtue of which the canal company claimed the right to abandon a portion of its canal was conferred by this act.
    The very first clause in the act is a grant of corporate power in these words: “ That the board of directors of the Pennsylvania and Ohio Canal Company be and they are hereby authorized and empowered to lease, sell, or abandon such portion or portions of said canal, etc.;” and the entire defense made to this action by the company.is founded upon the exercise of powers conferred by this act, and these powers, it will be observed, are not only new powers, but powers in direct conflict and contravention of the original charter of the company. Atkinson v. The M. & C. R. R., 15 Ohio St. 21; The State v. City of Cincinnati, 20 Ohio St. 18.
    
      II. But assuming that the act of March 20th was constitutional, and conferred on the plaintiff in error full power to make the abandonment claimed, and that the act of abandonment was duly and legally made in pursuance of said act, does such abandonment discharge it from its liability in regard to bridges ?
    The original charter of the canal company says (sec. 10) “ that it shall be the duty of said corporation . to build and keep in good repair suitable and convenient bridges over said canal, in all such places where said canal shall pass any existing state, and county roads which at the time shall be opened and used as such,” etc.
    The act of March 20, 1867, by which the abandonment is authorized, contains the following express provisions, limiting the effect of such abandonment: “ Sec. 1. That such abandonment shall' not be construed to release the said Pennsylvania and Ohio Canal Company from any liability or contract incurred or entered into, nor defeat the rights of any person or persons, company or corporation.”
    It would hardly be possible to use language more clear, sweeping, and comprehensive than this, and its purpose seems clearly to have been to protect and save every adverse right and interest in whosever favor it might be, and to leave unimpaired every fixed and existing liability of the company, except only its liability to keep up a navigable canal, and to do such things as were merely incidental and conducive only to that purpose.
    III. I claim that the “duty” imposed on the plaintiff in error by section 10 of its charter, to keep up bridges, etc., was a “liability” which it “incurred” when it accepted its charter and constructed its canal; and from which the first section of the act of March 20th expressly provides that it shall not be “ released” by the act of abandonment, and consequently that such “ duty ” still remains binding upon it.
    When the law casts a duty upon any person, who, after due notice, fails to perform it, and the performance of it becomes necessary as a matter of humanity, or of public policy, or for any good reason, the law will compel the party liable to perform the duty to indemnify any person who undertakes its performance. Township of Cincinnati v. Ogden, 5 Ohio, 23.
   Wright, J.

The Pennsylvania and Ohio Canal Company, by its charter of 1827, was authorized to locate and construct a canal, a portion of which ran through Portage county. Thus located and constructed, the canal crossed a number of state and county roads, already opened, established, and used, over which, therefore, bridges became a necessity. By section 10 of the canal charter, it was the duty of the company to build such bridges and keep them in repair. This it had done. The bridges had been constructed and kept in repair until the abandonment, hereinafter mentioned.

By an act of the legislature, passed March 20, 1867 (64 Ohio L. 285), the canal company was authorized to abaudon a portion of its canal, including the portion in Portage county, over which ran the bridges referred to. The canal company did so abandon, and thereafter neglected and refused to keep in repair these bridges. Thereupon the county commissioners tore down and removed the same; filled up the canal where thus crossed by the highways with earth — in some places entirely, in some places by making culverts for the water in the canal bed to pass through; and for the expense of this work the county commissioners bring this suit.

The Court of Common Pleas rendered judgment for the commissioners. A petition in error was filed in the District Court, and the cause reserved for decision in the Supreme Court.

From this statement it will be seen that up to the time of the abandonment it was the duty of the canal company to keep the bridges in repair, and the question to be decided is, were they so bound after the abandonment ? The commissioners claim they were. The canal company say they were not. The commissioners insist that the canal company had no power to abandon, except by virtue of the act of March 20, 1867. That this was a special act conferring corporate powers, and therefore void. Const. Ohio, sec. 1, art. 13. “ The general assembly shall pass no special act conferring corporate powers.” Atkinson v. M. & C. R. R., 15 Ohio St. 21; The State, etc. v. The City of Cincinnati, 20 Ohio St. 18.

If-this act does in fact confer “corporate powers,” or any additional corporate power, it is clearly in conflict with the constitution, and must be declared void. And if there be no right in the company to abandon, other than that given by this law, if it be void, the obligation to repair still continues.

That a canal company or other corporation can abandon its franchises, works, and property of every description, will not perhaps be disputed. It is not so much a question of power as of simple fact. If the works are disused, if, no directors are elected, and no sign of corporate existence given for a long series of years, no one would doubt but that an abandonment had taken place. But while this is true of what may be termed an entire abandonment, whether the company can abandon a portion of its works and retain -the rest, is another question.

Without the act of March 20, 1867, had the Pennsylvania and Ohio Canal Company undertaken to abandon this pax’t of their line, they might have been subjected to grave penalties and forfeitures. Had they sought to abandon one-half, they might have been liable to a forfeiture of the whole. Their corporate franchises might have been entirely taken from them. They might have had the right so to abandon a portion, but had they undertaken it, they would certainly have been compelled to suffer whatever penalties the law might inflict. Recent events have perhaps enabled the canal company to ascertain the correctness of this statement. In The State v. P. & O. Canal Co., 23 Ohio St. 121, the Supreme Court of this state, upon proceedings in the nature of quo loarranto, ousted this same company from all its corporate franchises, because it had neglected to keep in repair a portion of the canal still remaining. And this, although it was claimed that so much as was kept in order could not be taken away.

Without the act of March 20, 1867, therefore, the canal company might have abandoned a portion of their canal, but had they done so, they would have subjected themselves to penalties. It is the object of this act to relieve from these penalties, not to confer the power to abandon. That already existed.

Or the proposition may be stated in another way. The object of the constitutional inhibition is to prevent the granting or enlarging of corporate powers by special legislation, but we nowhere find in the constitution that the curtailing or restricting these powers is an evil. Giving the right to abandon is simply permissive ; allowing a corporation to surrender some of its rights, privileges, or property. And this has never been supposed to be inimical to public or private rights.

We are of opinion, therefore, that the act of March 20, 1867, in so far as it relates to this particular question, confers no corporate power, and is therefore not' in conflict with the constitution.

II. Another question remains. The act of March 20,1867, contains this proviso: “Provided that such abandonment shall not be construed to release the said Pennsylvania and Ohio Canal Company from any liability or contract incurred or entered into, nor defeat the rights of any person'or persons, company or corporation,” . . etc.

It is claimed by the commissioners that the canal company were under an obligation to keep these bridges in repair, and that under this proviso they are not absolved from that duty, and, therefore, that the obligation to repair still remains.

It is true that by their charter the company was so bound; but to whom were they bound ? The bridges were parts of public highways, and under the canal charter the duty to repair them was a duty owing to the public or the state, and not to any “ person or persons, company or corporation.” The state gave the company the right to build a canal, coupled with a condition requiring the bridges to be maintained, and in the complete observance of this condition and the duties arising from it, no one.but the public was interested. Certainly no private person, certainly no company or corporation, could compel the canal authorities to do their duty in respect to the bridges. The state or public was the sole repository of that power, as to it alone was the duty owing.

When the state, by its legislature, allowed the company to abandon or surrender a portion of its rights, it not only waived forfeitures, but also released from other duties owing to itself alone, and thereby discharged the canal company from further obligation to repair.

The canal company may have leased water-power, or granted other rights to private parties. To protect these is the purpose of the proviso. Indeed, legislation could not have interfered with them,‘except upon compensation made, and it is to this class of interests that the language of the act applies.

Upon the second point, we are of opinion that by the proviso in the statute the duty to repair is not continued, and that the commissioners have no right of action.

The judgment.of the Common Pleas will therefore be reversed, and judgment entered for defendants.

Scott, Chief Judge, Whitman and Johnson, JJ., concurred ; Day, J., not sitting.  