depriving him of the benefit of a contract thus made in authorized to subscribe 250 on behalf of the state; and good faith. And he will ever pray.

February 20, 1832.

ARCH'D. M'INTYRE.

if the proceeds of the lottery granted to the Union Canal Company, together with the tolls, shall not for twenty-five years yield a sum equal to an annual interest of 6 per cent. on all sums not exceeding 450,000 dollars subscribed by new subscribers, the Governor shall draw his warrant on the treasury for the deficiency. And in order to avoid all disability of the Company to pay such The power granted by the Legislature of Pennsylva- interest, so much of the 3d section of the former act, as nia to the Union Canal Company to raise money by pledges any portion of the avails of the lottery to the lotteries, stands as I conceive upon the following foot-holders of former shares for the payment of interest, is ing: suspended until the canal shall be completed; and the Presi

OPINION OF HORACE BINNEY, Esq.

The Act of 17th April, 1795, empowered the President and Managers are authorized to continue during the dent and Managers of the two companies then existing, to raise the sum of 400,000 dollars, to be applied in different proportions to their respective works. This was a bounty to those corporations, to enable them to carry on their works-in effect a donation from the state-without any right in the Companies to treat it as capital stock, or indeed any thing but a gift.

The act of 4th March, 1807, authorized the two companies to raise their respective proportions of the above grant separately; and in this act the description of a bounty is again given to the money to be thus raised, and the object of it defined to be, to enable the corporation to put their tolls as low as possible. The act of incorporation of the Union Canal Company, passed the 2d April, 1811, gives power to the Company to raise what it terms the residue of the original sum not exceeding 340,000 dollars, and repeats the description of the previous act, that it is a bounty to enable the corporation to make the tolls as low as possible. It expressly empowers the Company to raise by loan such sums of money as from time to time they may find expedient for the completion of their objects, upon the credit of their capital stock, including the nett proceeds and avails of the lotteries thereby authorized, and for the fulfilment of the terms and conditions of the loans to mortgage any part or the whole of their property, tolls, profits or estates whatsoever. And finally, to make this grant effectual, it punishes the sale of foreign lottery tickets, by a fine payable to the corporation.

Thus far these acts speak a consistent language upon the subject of the lottery: the power of thus raising money, and the money when raised, are a bounty from the state to the corporation,—a property which they are authorized to mortgage, and upon the credit of which they are entitled to borrow money for completing the objects of their incorporation. The grant was in its nature indefeasible: the Legislature were bound to respect it as much as any other grant in the charter.

The supplementary act of 29th March, 1819, after authorizing the subscription of 2500 shares, pledges the avails and nett proceeds of the lottery to the payment of an annual interest of six per cent. upon all shares so subscribed, and after 2500 shares shall be so subscribed, then upon former shares also; and after paying this interest, the excess is directed to go into the capital stock of the Company, and be invested, if not wanted to complete the works, in the funds of the United States, or other safe and productive fund, and the Company are authorized to make dividends on the interest arising therefrom.

said term of 25 years, to raise, by way of lottery, any sums that may be wanted for the purpose of paying the holders of said stock, six per cent. as aforesaid: Provided, that whenever the nett proceeds of the tolls shall amount to six per cent. the privilege granted by this act of raising money by lottery shall, during such time, be suspended, except so far as is authorized by existing laws.

This act is certainly not clear. Such an interpretation, however, ought to be given to it as is consistent with the faith of the Legislature, pledged in several of the preceding acts, and also with certain of its own provisions, about the meaning of which, there cannot be any reasonable doubt.

There is nothing in this act to interfere with the control of the Company over the former lottery grant, as a bounty, or as a resource to be pledged for loans, except the implied pledge of it for interest on the new stock; but if this implication is unjust to the Company, unless it be understood to be subject to their control, according to former acts,-if the provision made by this act for interest on the new stock is sufficient without such implication; and, above all, if there be any clear expressions in the act which suppose the continuance of the former lottery grant for purposes distinct from the provision of the interest or new stock,-then I conceive the implication is to be wholly rejected, as not having been in contemplation of the Legislature.

After a careful examination of all the acts on this subject, I am of opinion, that all the circumstances above mentioned, exist in the act of 1821, and concur to show that the lottery fund or grant of former acts remains under the control of the Company, to use for the purposes of their work, by pledging it for loans or the like. 1. It is unjust to the Company unless it is so understood. The grant was, it is true, a voluntary gift by the Commonwealth; but such a gift is as much matter of contract as a grant upon valuable consideration. Such stockholders as acquired their shares after the date of the laws which conferred it, such also as preserved their shares from forfeiture, by paying the required instalments, and even the new stockholders who, after the twenty-five years, are to trust to the general resources of the Company;may all be considered as having parted with their money upon the faith of its application to their use. The charter of a corporation is in many instances nothing more itself than a free gift by the Commonwealth; this, however, has never been held to give a right to the public to resume the gift, or to apply it in any way foreign to the original purpose. When This subscription did not take effect. But it is im- given by the Legislature, it was of course parted with possible to avoid seeing, that what is done by the lotte- by the public, and received by the Company. The mory fund by the 3d and 9th sections of this act, is the re-ney raised, or to be raised by it, could in no just sense sult of the position taken by the Legislature in the preamble to the 7th section, namely, that these may be considered as public monies: yet that they were public monies in any other sense, than that in which all monies are which are destined to public improvement by corporations or individuals, there is nothing to warrant in any preceding act of Assembly.

The act for the improvement of the state, passed the 26th March, 1821, puts this subject upon a different footing. Whenever 2500 shares are subscribed by individuals, according to the former act, the Governor is

be termed public money. It was private property, destined to an improvement of great public use; and this was the case with all the money subscribed by the stockholders. To take this money from the great mass of stockholders and to give it to new subscribers exclusively, ought not to be imputed to the Legislature, unless it is clearly expressed, and I can find no expressions to that effect which are not countervented by others still clearer.

2. The provision made by the act of 1821, for the payments of interest on the new stock is sufficient

without such implication. The act in terms authorizes the Company "to continue, during the term of twentyfive years, to raise, by way of lottery, any sums that may be wanted for the purpose of paying to the holders of said stock the six per cent. as aforesaid." Here is a new and unlimited power to raise money by lottery for this specific purpose.

3. There are clear expressions in the act which suppose the continuation of the former lottery grant for purposes distinct from the provision of interest upon the new stock:

The first of these expressions is that which provides -that in order to avoid, as far as possible, all disability "to pay such interest, so much of the third section of the act aforesaid as pledges any portion of the avails or nett proceeds of the lottery aforesaid, to the payment of an annual interest to the holders of shares not forfeited in the late Delaware and Schuylkill, and Schuylkill and Susquehanna Company be, and the same is hereby susPENDED until the canal shall be completed." The word suspended, is of great influence on this question. That pledge is not repealed or extinguished, but on the contrary is left in force, the exercise of it being merely deferred to a future day. Now it will follow that if the old lottery grant is used, or consumed for the interest on the new stock, the former pledge is effectually destroyed; whereas to bring the new power into operation for the interest on the new stock, is properly a suspension of the pledge, to meet which the old power may be resorted to on the completion of the canal,

1811, is termed the residue of the original sum not exceeding 340,000 dollars, is left to the Company as a bounty, and as a property to be pledged for loans, as I am told it heretofore has been under the advice of counsel:-and a new power is given to raise, during the twenty-five years, as much as with the nett tolls shall pay six per cent. per annum on the new stock: if the tolls at any time during that period shall be sufficient for this purpose, then the new power should be suspended; but nothing should interfere with the exercise of the old power under existing laws.

This interpretation is just to the Company, and nothing more than just. It leaves them in possession of vested rights under former acts, and it limits the exercise of the new power given by the Legislature, to that necessity which the Legislature has itself created, of paying an interest to certain stockholders, instead of leaving all stockholders to dividends derived from the tolls. The interpretation favours moreover the great object; for without a fund to pay interest on loans, loans could not be made, and consequently, the work could not be completed. If it should be asked, why has the Legislature suspended the payment of interest on the old stock, if it did not mean the old lottery fund to be otherwise applied? I answer that there is a sufficient reason for the suspension, in the danger both to the public and to the profit of the lotteries, by requiring too large a sum to be raised from them in the year; and that there is no reason upon the construction adverted to, for calling that a suspension, which was by the same construction a gradual destruction. January 5, 1827.

COPY OF AN OPINION OF JOHN SERGEANT AND HORACE

BINNEY, Esq's.

The President and Managers of the Union Canal Company have desired our opinion upon the question, whether in making loans under the authority given to them by law, they are authorized to mortgage the tolls of the Canal to the lenders, as security for the money borrowed, and the interest that may accrue upon it-or whether there is any existing pledge of the tolls, or other incumbrance upon them, which would have a priority to the lenders, and thus take away or diminish their security?

The second expression referred to, is the proviso "that whenever the nett proceeds of the tolls shall amount to the said six per cent. the privilege hereby grant. ed of raising money by lottery shall, during such time be suspended, except so far as is authorized by existing laws." It fellows from this language necessarily, that the Legislature contemplated the exercise of the new lottery power, before the old one was consumed; for if the old power was to be first used and exhausted before the new power could be exercised, the exception is useless there could not be under such a construction any lottery power in the Company at the time of such suspension, by the laws existing at the date of the act of 1821. But if the new power was to be used for the purpose of paying the interest, then the exception was reasonable, because the suspension of the new power, ought not to interfere with the exercise of a power pre- To this question we answer as follows:-The authorviously given. The reservation of the excess of any ity to raise money by way of loan, and to mortgage the money raised by lottery beyond the said six per cent., tolls, among others things, for the fulfilment of the and which is found in the same proviso, fortifies this terms and conditions of such loan, is expressly given by construction. Had the former lottery power been re- the 26th section of the act of the 2d April, 1811. This garded as a resource for paying the interest, then authority is not repealed or taken away, in terms, by doubtless the Legislature would have directed a reser- any subsequent act. It therefore remains in force, unvation of its surplus monies to meet a deficien y. But less there be some provision inconsistent with it in subthe reservation is only of the monies arising from sequent acts, which by making a different disposition "said lottery,” the antecedent to which is, "the privi- of the tolls, amounts to a virtual repeal. After examinlege hereby granted of raising money by lottery," so that ing carefully the several acts passed on the subject since the reservation is of the surplus monies raised under the the year 1811, we find no such provision. The act of act of 1821. 1821, it is true, does contain a clause which at first view might seem, perhaps, to have this effect. The words are these, "Provided that whenever the nett proceeds of the tolls shall amount to the said six per cent." (meaning the six per cent. upon stock,) "the privilege hereby granted of raising money by lottery shall, during such time be suspended, except so far as is authorized by existing laws, &c." But we are clearly of opinion that neither this clause nor any other in the act, can be so construed. For in the first place, the words used by the Legislature are not "when the tolls shall amount, "but when the nett proceeds of the tolls shall amount." By "nett proceeds," we understand the clear revenue from tolls after paying all charges to which they may be made subject under existing laws, including, of course, mortgages for loans. But in the next placc, we would remark, that by this act the tolls are not pledged either to the state or to the subscribers to the stock of the Company. Their amount is only made a condition up

These views of the act last mentioned,may perhaps induce the opinion that the bearing of its different provisions have not been critically observed in penning the act; but it cannot be doubted, I think, that the interpretation adverted to by me, and which is in conformity with all that the Company have done and communicated to the Legislature since the date of that act, is the best and most reasonable.

This has in some respcets the weight of a contemporary interpretation; and when it is remarked, that the insertion of a single line would have made the contrary interpretation obvious, as for instance saying "that the new power should not be used until the old power was exhausted," the absence of such a clause, implies the absence of that intention.

The meaning to be deduced from this act, then at once, reasonable and consistent with former laws, is this: that the old power of raising what in the act of

on which the enjoyment of the new lottery right grant-that under the act of 1811, the Union Canal Company ed by this act is made to depend, which cannot be construed to take away or impair the pre-existing power to mortgage for the purpose of obtaining loans. This power to borrow, is indeed so essentially necessary for the interest of all concerned, the old stockholders, the new stockholders, and the commonwealth, that it is not to be supposed the Legislature would interfere with it, or render its exercise more difficult or disadvantageous. There can be no tolls till the Canal is completed, and its completion might be impossible without

1. Is the authority granted to the Company by the act of 26th March, 1821, to raise by way of lottery, any It may be proper further to remark, that the fifteen sums that may be wanted for the purpose of paying to per cent. usually deducted from the prizes, is a very the holders of the new stock an annual interest of six imperfect index of the amount raised by a lottery. It per cent, an authority that can be exercised only after would not be a proper one even if all the tickets in a the power to raise money under the act of 2d April, scheme were sold, for there are charges and expenses, 1811, has been exhausted for the same purpose; or numerous and heavy, bad debts, &c., which must be may the authority given by the act of 1821, be exercis- set against this per centage. But the non-sale of a large ed for the purpose of paying that interest, while the portion of tickets, which is an invariable and unavoidapower given by the act of 1811, is at the same time ex-ble attendant of lotteries, necessarily involves the proercised for other purposes of the company, or postpon-prietor of a lottery in the hazard or chances of a scheme, ed to a future time to raise the residue of the sum authorized by that act?

1832.]

DELAWARE AND RARITAN CANAL, AND CAMDEN AND AMBOY RAIL-ROAD.

expenses, labor, and losses, unavoidably incident to the operation.

You will please to take these remarks into consideration, in connexion with the fact, that the practice of the Company was known to the Legislature before the act of 1819, and constantly since.

169

tended that they should defer raising money to pay the interest until the tolls were proved to have been insufficient, and the interest had already accrued. A reasonable provision in anticipation of the probable deficiency of the tolls, and to the extent of it, must have been intended by the act. No other course is reconcil4th. If the Company are chargeable under the lotte-able with prudence, or the usual method of conducting ry grants only with the amounts bona fide received by similar operations. In our opinion, the Company are them for the different schemes, does it or does it not fol- not bound to raise what is necessary within the year. low, that whatever the assignees may have made or lost, The language of the act is an express warrant for this that circumstance does not affect the validity of their construction. The Company are required to reserve contract with the Company? any excess of the sum raised over the 6 per cent., to meet a The importance of sustaining our contracts and of future deficiency, and not to divide it; it is consequently counteracting the influence of a report, which so far as no violation of the law to raise an excess, if there is a reait regards most of the facts stated, we know to be inac-sonable probability that it will be required in future. curate, has induced us to ask your opinion on the foregoing inquiries in point of law.

If our apprehensions of them shall be confirmed by your opinion, we trust that the probity of this community will not countenance an assault upon our legal rights, derived from, and sanctioned by the Legislature of this Commonwealth.

}

YATES & M'INTYRE.

Esquires.

HORACE BINNEY,
JOHN SERGEANT.
JAMES C. BIDDLE,
Philadelphia, Dec. 24, 1831.

OPINION.

We have deliberately considered this case, and are of the following opinion:

1. That the lottery grant under the act of 1821, is not merely supplementary, but is a grant of the power to raise any sums that may be wanted to pay the interest on the new stock, concurrently, if the Company think proper, with the balance of $340,000 authorized to be raised by the act of of 1811; and not only after that balance has been raised and expended upon the interest. Although the act of 1821 is by no means clear, we think certain of its provisions decidedly sustain this interpretation, particularly that clause which suspends the right to raise money under the act of 1821, whenever the nett proceeds of the tolls shall amount to 6 per cent. per annum, with an express saving of the right, under existing laws. If the grant under the act of 1821 was not to come into operation, until the grant by former laws had been exhausted, this saving would be inoperative. We think also that this interpretation is sustained with equal effect by another provision, which professes merely to suspend a previous pledge of the lottery grant for the benefit of the old stockholders, until the canal should be finished. If the grants were not meant to be cumulative, then an intention is imputed to the Legislature, to destroy this pledge: and the facts stated show that it has already been destroyed, instead of being suspended: and destroyed just at the time when, by finishing the canal, the act declares that the suspension shall terminate. The good faith of the state moreover appears to consist better with this than with any other construction of the act. The lottery grant of 1811 was not merely a bounty to the Company generally, in which sense it was as irrevocable as a grant for a valuable consideration; but the Company were expressly authorized to morgage it as a security for loans. This authority has not been revoked. No such revocation is to be found either in the language or the plain meaning of any subsequent act. The power has been exercised, and lenders to the Company to a large amount, now rest in part upon that security. Without such clear expressions as would make a different interpretation wholly inadmissible, it appears to us against the good faith of the Commonwealth, to impute the intention of destroying the uses of the old grant to the lenders, by applying it in the shape of interest to the new stockholders.

3. The facts stated under the third inquiry, furnish a strong ground for giving such an interpretation to the acts of 1811, 1819, and 1821, as will charge the Company only with the price by them received for the lottery privilege. Cotemporaneous construction seems entirely to favour it: and there are intrinsic difficulties in the way of a charge on any other principle. The money paid to the Company has undoubtedly been referred to in the act of 1819, as the nett proceeds of the lottery; and the nett proceeds are all that can be equitably charged. The amount received by the Managers, under the deduction of 15 per cent. are the gross proceeds, against which all the expenses of the lottery, all the charges of the agency, and bad debts, are to be placed; and the fate of unsold tickets also, if any remain unsold. The uncertainty of any rule of charge except that adopted by the Company, induced the Legislature to receive it as a reasonable one, and at this time of day we think it inadmissible to disturb it, by resorting to a strict interpretation.

4. We are clearly of opinion, that the amount made or lost by the assignees is a matter of no consequence. If they were ruined by the lotteries, the Company would still be chargeable under the lottery grants with the sums received by them. If the Company are chargeable with these receipts only, then the lottery grants not being exhausted, the existing contracts for raising further sums are valid: and if the first lottery grant is exhausted, which we have already said, we do not think, then the right to raise money for the interest on the new stock would give validity to these contracts.

CAMDEN AND AMBOY RAIL ROAD.

(Last week we published the Bill relative to the Camden and Amboy Rail-road, as it was first presented to the Assembly. Below it will be found as amended in the house, and as it passed both houses of the Legislature.]--N. J. State Gaz.

A SUPPLEMENT to an act entitled "An Act relative to the Delaware and Raritan Canal, and the Camden and Amboy Rail-road and Transportation Companies." Sec. 1. BE IT ENACTED, &c. That it shall and may be lawful for the said Delaware and Raritan Canal, and the Camden and Amboy Rail-road and Transportation Companies, to transfer to this state, one thousand shares of the joint capital stock of the said companies, upon which all the instalments shall be paid by the said 2. That a reasonable discretion as to the amounts to companies, so that neither, at the time of the said transbe raised, and the time of raising them, under the act of fer, or at any time thereafter, the payment of any mo 1821, exist in the Company. It cannot have been in-ney thereon or therefor, shall be required from the state;

VOL. IX.

22

pealed.*

a certificate of which stock shall be held by the Treasu- ritan Canal Company be, and the same is hereby rerer of this state, for the use of the state; and all dividends of the company be declared and payable thereon, as if the state had subscribed for such stock, and paid the several instalments thereon.

Sec. 2. And be it enacted, That it shall not be lawful, at any time during the said Rail-road charter to construct any other rail-road or rail-roads in this state, without the consent of the said companies, which shall be intended or used for the transportation of passengers or merchandize between the cities of New York and Phila

From the Philadelphia Gazete. PROCEEDINGS OF COUNCILS. Thursday, March 8, 1832.

SELECT COUNCIL.-Mr. DUANE was called to the Chair.

Mr. JOHNSON presented petitions praying that Jones' alley and Beach street be curbed and paved, which were referred to the Paving Committee.

Mr. MASSEY presented petitions praying that Cherry street to Schuylkill Seventh street, and Eighth street between High and Arch street be paved, which were referred to the Paving Committee.

delphia, or to compete in business with the rail-road authorized by the act to which this supplement is relative. Provided always, That nothing in this act shall be so construed as to prevent the construction of a rail-road from the city of New Brunswick to the Hudson river, or any lateral road that may be hereafter authorized by an act of the legislature, from a suitable point or points, intersecting said road, to be designated and agreed upon by the said companies; or any lateral road or roads, not intended or used for the purpose or competition as afore-To the Select and Common Councils of the city of Phila

said.

Sec. 3. And be it enacted, That if within one year from the time that the said rail-road from Bordentown to Amboy, is so far completed that passengers and merchandize be transported thereon, the transit duty reserved by the acts incorporating said companies, and the dividends on the stock hereby authorized to be transferred, shall not amount to thirty thousand dollars, it shall be the duty of the said companies to pay such deficiency to the treasurer of this state, out of the joint funds of the said companies, before any dividend is made to the stockholders, and that each and every year thereafter, such deficiency, if any shall exist, shall be paid by the said companies, so as to secure to the state the aforesaid sum of thirty thousand dollars, at least, in each and every year during said charter.

which was referred to the Paving Committee in conMr. LIPPINCOTT presented the following petition junction with the City Solicitor.

delphia.

The Memorial of the undersigned, the President and Managers of the Philadelphia Exchange Company, Respectfully represents: That your memorialists are about to construct a costly and elegant Exchange on the lot of ground at the north side of Walnut street, between Third and Dock streets: That they propose surrendering up to public use a considerable portion of the ground at the immediate corner of Dock and Walnut streets; and are desirous, before proceeding to erect their building, that the width of the several footways about the same should be reconsidered by your honorable bodies, and so arranged as to improve the appearance of the square, and promote the general convenience. They would also respectfully suggest, that as the whole of the square on Walnut street will be occuSec. 4. And be it enacted, That in declaring and mak-pied by the intended building, it would be adviseable ing dividends of the nett profits, the president and directors of the said companies, shall declare and divide the whole of the actual nett profits accruing to the time of such dividend, retaining only such surplus funds as may be deemed requisite to meet unexpected and extraordinary damages to the works respectively, which surplus funds shall in no case exceed, in the whole, the sum of one hundred thousand dollars.

Sec. 5. And be it enacted, That the state shall be entitled to the appointment of one director to represent the said stock, but that no vote shall be given for said stock at any elections of the stockholders.

Sec. 6. And be it enacted, That it shall be the duty of the said companies, to construct a lateral rail-road from a suitable point on said road, at or west of the village of Spottswood, to a suitable point or points, in the city of New Brunswick, to be determined upon by the said companies, by and with the assent of the corporation of said city, in the construction and use of which said road, the said companies shall be entitled to all the powers, privileges, and subject to all the conditions and limitations contained in the act incorporating said railroad company, and which said lateral road shall be completed as soon as any rail-road be made from the said city of New Brunswick to the Hudson river: Provided always, that the said companies shall not charge more than two dollars and fifty cents for each and every passenger carried thereon, from and to the cities of New Brunswick and Philadelphia.

Sec. 7. And be it enacted, That the assent of a majority of the stockholders of the said companies to the provisions of this act, in writing, shall be submitted to and approved by the Governor of this state, or the person administering the government of the same, and filed in the office of the Secretary of this state, within forty days after the passing of this act, or this act shall be void.

at the same time, without affecting the regulation of the streets, to reduce the rapid descent of the footway from Third to Dock street, or perhaps to keep it on a level throughout.

They pray your honorable bodies, to take such order in the premises as to your wisdom shall seem meet.

The subjoined communication from the City Commissioners was received and referred to a joint committee of two members of each Council, and Messrs. Massey, Lippincott, Hood and Patterson were appointed the

committee.

CITY COMMISSIONERS OFFICE,

March 8th 1932.

To the President and Members of the Select Council. Gentlemen,-The City Commissioners respectfully submit to Council, printed statements of their expenditures for the year 1831, together with their annual report, and the city rental for 1832.

They also respectfully ask the attention of Council to the procuring of a supply of Oil, on which, Council have heretofore appointed a committee. The Commissioners have been informed by the Captain of the Watch, that a fresh supply will soon be required.

By order of the City Commissioners,
ROBERT H. SMITH, City Clerk.
The subjoined communication from the WARDENS OF
THE PORT was received and referred to the Paving Com-

mittee.

WARDENS' OFFICE, Philadelphia, March 5th, 1832. Sir, The Wardens of the Port have by the following resolution authorized and instructed me to address this communication to the honorable body over which you

* The section in the original act of incorporation gave to the state the right to subscribe for one fourth of the capital stock of the Company, which is thus relinquish

Sec. 8. And be it enacted, That the twenty-third section of the act incorporating the said Delaware and Ra-ed by the state.