Brennan v. City of Weatherford, 53 Tex. 330

Brennan v. City of Weatherford

53 Tex. 330 | Tex. | 1880

Bonner, Associate Justice.

The legal effect of the pleadings of plaintiffs was to raise, in a collateral proceeding, the question of the existence in law of the corporation of “ the city of Weatherford,” its existence in fact being admitted.

There are two questions presented by the record:

1. Could the plaintiffs in their individual names institute this proceeding, or should it have been by information in the nature of a quo warranto in the name of the state?

2. Was a corporate seal to the copy of the proceedings of the city council, adopting the general incorporation act, an essential prerequisite to give vitality to the new corporation?

First. As to the necessity of proceeding by information in the nature of a quo warranto.

The creation of a corporate franchise is an attribute of sovereignty to be exercised solely by the supreme power of the state. Such franchise being amenable only to the power of its creation, it follows that this power alone can question the legality of its existence, by such proceedings as in its wisdom it may adopt.

This proceeding was formerly by the writ of quo warranto, but since the statute of Anne (9 Ann. Ch. 20, A. D. 1711), now expressly re-enacted in many of its essential features by the legislature of this state (Appendix, R. S., 47), it has been by information in the nature of a quo warranto.

Although this in some respects partakes of a criminal character, it is essentially a civil proceeding to correct the usurpa*337tion, non-user or misuser of a public office or a corporate franchise. High on Extraordinary Legal Remedies, chap. 13; id., §§ 684, 696, 697, 698; Angell & Ames on Corp., 734; 2 Dillon on Mun. Corp., §§ 680, 713, 714, 716; High on Inj., §§ 798, 799; Cooley on Taxation, 536, 574; The State v. Hardie, 1 Ired. Law (N. C.), 42; President and Trustees, etc., v. Thompson, 20 Ill., 197; Hamilton v. President and Trustees, etc., 24 Ill., 22; Kittering v. City of Jacksonville, 50 Ill., 39; Kayser v. Trustees, etc., 16 Mo., 88; The State v. Carr, 5 N. H., 367; Grant v. Chambers, 34 Tex., 573; Banton v. Wilson, 4 Tex., 400.

Such questions, as said by Mr. Cooley, are “ generally questions between the corporators and the state, with which private individuals are regarded as having no concern. In proceedings where the question whether a corporation exists or not, arises collaterally, the courts will not permit its corporate character to be questioned, if it appear to be acting under color of law, and recognized by the state as such. Such question should be raised by the state itself, by quo warranto or other direct proceeding. And the rule, we apprehend, would he no different if the constitution itself prescribed the manner of incorporation.” Cooley on Const. Lim., 254.

This suit should have been brought by information in the nature of a quo warranto, and the special demurrer to this effect was well taken. That the court did not base the judgment upon this ground did not affect its validity.

Second. As to the want of a corporate seal.

Counsel for appellants desire that we pass upon this question also, should our opinion be adverse to the rights of plaintiffs to institute the suit.

As it is not necessary to the decision of the case, it would be improper to do so until the question should have been argued on behalf of the state, were we inclined to the opinion that the want of a corporate seal was necessarily fatal to the existence of the new corporation.

There were two principal objects intended to be provided *338for by the statute: one, the mode by which the new charter could be accepted by a two-thirds vote of the city council, had at a regular meeting and entered upon the journal of the proceedings; the other, the means by which this vote could he authenticated and placed upon the public records, by a copy of these proceedings signed by the mayor, attested by the city clerk or secretary, under the corporate seal.

Mr. Cooley sums up, as the general result of the cases which discriminate between statutes which are mandatory and those which are directory only, that “ those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.” Cooley’s Const. Lim., 77.

A more liberal rule of construction is allowed in favor of public charters granted for the general good than in private charters for individual gain. Bradley v. R. R. Co., 21 Conn., 306.

We think that the controlling prerequisite of the statute for the acceptance of the new charter, was the two-thirds vote of. the city council, and that the legislature did not intend, in a case like the one now before the court, that the attestation by the corporate seal should be an absolutely essential prerequisite to the existence of the new corporation.

It is affirmatively shown by the petition that the old corporation had existed for about twenty years; that it had no seal, and consequently could not by that means have authenticated its former proceedings, and the presumption is that they had been authenticated as in this instance. The city of Weatherford was by its acts estopped from denying its corporate existence, and it is believed that the plaintiffs, as part *339of the individual members composing this corporation, are likewise estopped in a mere collateral proceeding.

The reasons which anciently required, the formality of a seal have to a great extent ceased to exist, and with this, under modern decisions, much of that sanctity which once attached to them.

We are of opinion that there should be a broad distinction between those cases in which parties are held to answer in invitum by legal process, in which a seal of a certain character established by law is made an essential requisite to the validity of official proceedings, and those in which a mere private seal, fashioned after the peculiar fancy of an individual or corporation, is used for private purposes.

Affirmed.