87 Ala. 482 | Ala. | 1888
The theory upon which this suit was instituted, and this appeal prosecuted, is, that the efforts of the defendant below — appellee here — and others acting with him, to organize a corporation, were so far abortive that the would-be corporators, instead of forming a body corporate, in law and fact constituted a partnership, or voluntary association of individuals, and as individuals became bound on the contracts purporting to be made by the corporation and
The infirmity in the proceedings had and taken by and at the instance of the defendant and his associates, which is relied on as defeating their purpose to organize a corporation, is alleged to result from non-compliance with two acts of the General Assembly passed at the session of 1882-3, amending respectively sections 1803 and 1804 and section 1807 of the Code of 1876.
By an act of December 6, 1882, sections 1803 and 1804 of the Code of 1876 were amended so as to read as follows, respectively:
“§ 1803. Declaration filed with Probate Court; contents. — Two or more persons desiring to form themselves into a private corporation, for the purpose of carrying on any manufacturing, mining, immigrating, industrial or other lawful business, not otherwise specifically provided for by law, may file with the Probate Court of the county, in which it is proposed that such company shall have its only or principal place of business, a written declaration, signed by themselves, setting forth:—
“1. The names and residences of the petitioners.
“2. The name of the proposed corporation, the place at which it proposes to have its principal or only place of business, the general purpose of the corporation, and the nature of the business which it proposes to do.
“3. The amount of the capital stock, and the number of shares into which it is to be divided, showing the par value of each share.
“4. Any other matter which it may be desirable to set forth in the organic law.
Ҥ 1804. Commission issued to board of corporatorsj books of subscription; token and where opened. Upon the filing of the declaration as above, the probate judge of the county shall issue to the parties, or to any two or more of
By an act “to amend section 1807 of the Code,” approved February 5, 1883, that section was made to read as follows:
“§ 1807. Certificate of organization. — Upon the completion of the organization of the company, and the payment to the treasurer of the company, or some officer designated for that purpose, in cash, of at least twenty per cent, of the capital subscribed, payable in money, and the payment of the remainder of the capital so subscribed for, payable in money, being secured to be paid in such installments and cvt such times as may be provided in the written declaration required by section 1803 of the Codej and also the delivery to such officer oj at least twenty per cent, of the property so subscribed to the capital of such corporation, toith security for the delivery of the remainder of said property, so subscribed to the capital as may be promised by said written declaration required by section 1803; the board of corpora-tors shall, in writing, over their signatures, certify the same to the probate judge of the county, who shall issue to the company a certificate that they have been fully organized according to the law of Alabama, under the name and for the purpose indicated in their written declaration, and that they are fully authorized to commence business under their charter.”
By the first of the acts copied above, section 1803 of the Code of 1876 was amended by inserting the words, “or other lawful business, not otherwise specifically provided for by law”; and section 1804 was amended so as to take away from the probate judge the power and duty of requiring the board of corporators to give such notice of the time and place of opening the books of subscription, as he might deem fit, and, in lieu thereof, require that officer to authorize the corporators to open books for subscription “at such time and place as they deem fit.” The amendment of section 1807 of the Code attempted to be made by the second statute set out, is indicated by the italization in the body of the act as quoted.
While the statutes were in force, and with the unamended sections of Article 1, Chapter 1, Title 1, Part Second of the Code of 1876, constituted the law under which certain classes of corporations were required to be organized,
This section, as amended by the act of February 5, 1883, refers also to the eighty per cent, of the subscribed capital stock which is not required to be paid in before certification of organization, and makes the fact of that part of the capital “being secured to be paid in such installments. and at such times as may be provided in the written declaration required by section 1803,” one of the conditions upon which arises
Another clause of the section quoted from above provides, that “No law shall be revised, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published , at length.” Giving to the act of February 5, 1883, the effect of amending section 1803 in the particular indicated, the result would be to amend or extend that section, in a matter the importance of which this case fully attests, by a bare reference to an arbitrary number, which has been attached to it for the purpose of physical identification, and which fails absolutely to give any information or hint of its contents, and with no pretense of re-enacting the section and publishing it at length as amended. Such an amendment is clearly within the inhibition of the constitution last quoted, as expounded in the former adjudications of this court. — Rodgers v. Torbut, 58 Ala. 523; Stewart v. County Commissioners, 82 Ala. 209; Bay Shell Road Co. v. O’Donnell, ante, p. 376; Ex parte Reynolds, ante, p. 138.
Having thus reached the conclusion, that to adopt the construction of the act of February 5, 1883, contended for by appellants, would render it unconstitutional, it becomes the duty of courts to give to that statute, if it can be done consistently with its terms, an interpretation which will leave it a field of operation within constitutional limitations. Wilburn v. McCalley, 63 Ala. 436. This result may be attained by adopting the construction indicated above, and holding it to have been the purpose of the General Assembly, as gathered from the language employed, and hence to be the effect of this act, to require unpaid subscriptions to be secured to be paid in certain installments and at certain times, in those cases only in which the corporators have dedared, under clause 4 of section 1803, that that part of the subscribed capital which is not paid on organization shall be paid in stated amounts and at particular times. Indeed, the particular expression used in the act of 1883, aside from any other consideration, tends strongly to support this conclusion. It is there provided, that certification of organization shall be made upon the payment of at least twenty per cent, of the capital subscribed, and upon the remainder
Our conclusion is, tbat tbe corporation was regularly organized, and is alone liable on tbe contract sued on in tbis case. Tbis renders it unnecessary to consider tbe question of estoppel.
Affirmed.