75 Md. 340 | Md. | 1892
Lead Opinion
delivered the opinion of the Court.
By chapter 284 of the Acts of the General Assembly -of 18T2 was passed the Act entitled “An Act to incorporate the Baltimore, Hampden and Lake Roland Railroad Company.” The first section of the Act names certain persons as commissioners to take subscriptions to the capital stock of the company; and in case of the •death, resignation or refusal to serve of any of the persons named as commissioners, a majority of the remaining commissioners were given authority to appoint others. By the second section of the Act the subscribers to the stock, and their successors and assigns, are declared incorporated into a company by the name of “Baltimore, Hampden and Lake Roland Railroad Com
The third' section makes the capital stock of the company to consist of shares not exceeding two thousand in number, of the valuq of fifty dollars per share; five dollars of which was to be paid at the time of subscription, and the residue in such instalments as the-president and directors should determine.
By the fourth section, as soon as five hundred shares should be subscribed, the commissioners to take the subscriptions, were authorized by publishing notice as prescribed, to call a meeting for the election of seven directors, who on being elected should elect a president, for whose qualification the fifth section provides.
The sixth section gives the company thus incorporated power to construct a railroad with one or two tracks, and necessary sidings for the transportation of travelers or freight by horse power, and gives the company the exclusive use of any streets or county roads over which they may wish to lay their tracks between Boundary Avenue and Lake Roland; “provided said track or tracks are constructed in such manner as not to interfere with the travel on said streets or roads.”
The seventh section provides for the condemnation of the right of way and estimating damages and benefits. The eighth section preseribes the rate of fare, not exceeding five cents per mile, or for the fraction of one.
The ninth section authorizes the borrowing of money to the extent of twenty-five thousand dollars; the tenth authorizes the making of by-laws, rules and regulations and the appointment and employment of officers.
The eleventh section provides “that said company shall commence said railway within three years from the passage of this Act, and complete the same in ten years.” By the twelfth and last section the Act is made to go into-
The appellant is a property owner residing on Roland Avenue, which is opened as a public avenue” or highway, of the width of sixty feet, past his property; and has filed his bill for an injunction restraining the appellees from the construction of their road which has been begun. He charges that the tearing up and obstruction of the avenue as is proposed is without lawful authority and will be an unlawful obstruction of the appellant in going to and from his premises. He avers that what is being done is not for the purpose of using horses for the road, but with the design of using electricity as a method of propulsion. He sets up in his bill and contends in argument, that the Act of Assembly, relied on by the appellees as an Act of incorporation, is void because it is in conflict with the provisions of Art. 3, section 48, of the Constitution, which prohibits the granting of charters to corporations when there is a general law under which they may be formed, as appellant contends that there is.
2. That it was not accepted in time to confer on the corporation the powers which are claimed for it; or to create a corporation at all; and thirdly, that if originally accepted in time the charter gives no right to the corporation to lay down their tracks in the highway without the consent of the county commissioners, which has not been obtained.
The appellees deny all these several propositions, and the Court below agreed with the appellees in reference to them, and refused the preliminary injunction which was asked, and from that refusal this appeal was taken.
The appellees have moved to dismiss the appeal because it is contended that this particular case does not fall within the provisions of section 29 of Art. 5 of the Code! When the bill was filed and preliminary
For the purpose of deciding this case we need not consider the question whether the Act of Assembly, under which the appellee claims corporate powers was constitutionally enacted. We may assume, without so deciding, that it was; for conceding that it was lawfully passed, we are of opinion that the appellee never acquired lawful corporate existence under it. If it did not acquire corporate life under that Act, the injunction should have gone. The statute appointed commissioners to take subscriptions for the stock of the road it authorized to be built upon specified conditions and within certain limitations as to time. Those commissioners were not declared to be incorporated. They were the mere agents of the State to offer the charter to subscribers willing to accept it as offered. State vs. Bull, 26 Conn., 179. Those who should become subscri
The commissioners to take subscriptions must act therefore within such time that subscribers to the stock,
The acceptance must not only be within reasonable time, hut it must be of that which is offered.' 1 Morawetz on Corporations, p. 22; State vs. Bull, 26 Conn., 179; Hammond vs. Straus, 50 Md., 12. In the last cited case this Court said acceptance is essential to the existence of a corporation, and whether there was an acceptance was a question for a jury under the direction of the Court as to what will amount to an acceptance. The case in which this Court said that was one at law, where the existence of the corporation was in issue. Here the case is in equity and the whole matter is for the Court. The legal existence of a corporation is always open for inquiry. Hammond vs. Straus, 50 Md., 12; Smith vs. Silver Valley Mining Co., et al., 64 Md., 85; Lyons vs. Orange, &c., Railroad Company, 32 Md., 18; Agnew vs. Bank of Gettysburg, 2 H. & G., 493. Acceptance being essential, it becomes a condition precedent to corporate life. Whether that has been done within a reasonable time is a question of law for the Court on the facts before it, for decision by the Court, when arising in equity, or for instruction to a jury when the facts are to be found by it. Loring vs. City of Boston, 1 Metc., (Mass.,) 409; Chicago & Great Eastern R. R. Co. vs. Dane, 43 N. Y., 240; Mizell vs. Bennett, 4 Jones, (N. C.,) 429; Hammond vs. Straus, 53 Md., 12. The time for finishing the road under the law expired in 1882,
The Act of 1872, chapter 284, did not create a corporation eo inslanti. It names as corporators future subscribers. It does use the term “hereby created,” but that means that when there are subscribers, such as the Act calls for, they are' hereby declared á corporation. It provided for the formation of a corporation;
It was certainly not the intention of the Legislature to allow the commissioners appointed under this statute to perpetuate their existence indefinitely by filling vacancies from time to time as mentioned in the Act, so as to enable them, at any distant period, after the lapse of the time prescribed by the Legislature for doing the work, until such time as they or their successors thought advisable, and then to hring by their act a corporation into existence^ at will, which act of theirs nobody could gainsay hut the State. If the State did not intend by this Act to give such wonderful powers, then the attempted exercise of such powers was without warrant of law, and accomplished nothing — was void, and any one interested may contest it.
If that organization under that Act can not be questioned in this way at the instance of this appellant, then if the taking of subscriptions and organization had been delayed a hundred years; and then that was done which has now been done, nobody, no matter how much injured by its doing, could complain and be heard in the Courts; and if the State did not interfere unexampled injury and loss might be wrought without redress. Although other agencies for meeting the public convenience might, in the meantime, have been devised, adopted and introduced, if the position of the appellees be sound, a hundred years hence it would be possible for the stock to be
After careful examination of the cases to which we have been cited and many more, we have been able to find no case, where the law is, as in Maryland, which really sustains the position of the appellees. Especial reliance has been placed on the pase of County of Macon
Reversed and remanded.
Dissenting Opinion
delivered the following dissenting opinion, in which Robinson and Eowler, J. concurred:
I maintain that the appellee is validly invested with corporate power And I shall briefly state the reasons-for my opinion.
The statute of 1872, chapter 284, is entitled “An Act to incorporate the Baltimore, Hampden and Lake Roland Railroad Company. ” In September, 1891, the first subscriptions to the stock of the corporation were made; it was then organized, and is now regularly conducting its business under the claim- of chartered right. The question affecting its corporate existence arises under the eleventh section of the Act of Assembly, which is in these words: “And be it enacted, That said company shall commence said railway within three years from the passage of this Act, and complete the same in ten years. ” The appellant contends that inasmuch as the railway was not commenced within three years, and not completed within ten, the Act lost all its efficacy; that it was not competent for the subscribers to the stock to organize and to exercise the franchises offered by the
I cannot see how the completion of the railway within ten years after the passage of the Act of incorporation
(Filed 17th Feburary, 1892.)