92 W. Va. 246 | W. Va. | 1922
On December 5, 1921, the County Court of Berkeley county obtained a temporary injunction restraining the Security Cement & Lime Company from constructing a railway along and over the. Martinsburg & Potomac Turnpike and from placing any obstruction thereon until the further order of the court. The defendants, Lime Company and Turnpike-Company, filed their answers and certain affidavits, and on. motion, the injunction was dissolved. The County Court appealed to this court.
The Martinsburg & Potomac Turnpike Company was in-, corporated by special act of the Legislature of Virginia, March 17, 1849, chapter 176. By amendment, February. 25, 1850, Acts of Virginia Legislature, 1849-50, chapter 128, the width of the carriage way was fixed at not less than sixteen feet. The road extends from Martinsburg to a point on the Potomac river opposite or near the Town of Williamsport, Maryland. It was improved and has been in use for many years. Three-fifths of the stock of the company is owned by the plaintiff County Court. Its Board of Directors consists of five members.
The Lime Company at a cost of upward of $4000 constructed the concrete road provided by the contract a distance of 275 lineal feet, twenty feet wide, except under the bridge it was laid twenty-three feet wide, leaving a space of seven feet to be laid along and on the turnpike under the bridge on the side upon which the tram-way was to be placed; the tracks there were to be laid on concrete and flush with it. It had its material ready to concrete this space and lay its tracks when the plaintiff obtained its injunction.
The grounds alleged for the injunction are: (1) fraud in the procurement of the contract; (2) want of authority in the Board of Directors of the Turnpike Company to make the contract; (3) want of authority in the Turnpike Company to make it; and (4) the creation of a dangerous obstruction in the Turnpike road.
1. The first ground, or charge of fraud in the procurement of the contract, may be dismissed without comment, further than to say that there is not the slightest fact shown to substantiate it. The contract was entered into in good faith on the part of both parties; it is fair in its terms, and is certainly one beneficial to the Turnpike Company.
2. As to the lack of authority in the Board of Directors to make the contract; the act incorporating the company made it subject to the statute prescribing general regula
“The president and directors,' thus chosen, shall have the power to receive the subscriptions for the residue of shares required to make up the capital stock of the company; to make contracts with any person or persons, on behalf of the company, for clearing, opening, and improving the road, and performing such other work, respecting the same, as they shall judge necessary and proper; to require from subscribers, from time to time, such advances of money on their respective shares as the wants of the company may demand, until the whole of their subscriptions shall be advanced; to 'call, on any emergency, a general meeting of the subscribers, giving one months notice thereof in one of the newspapers printed at or near the place appointed by the stockholders for their general meeting; to appoint a treasurer, clerk and such others officers as may be necessary; to sign and settle all accounts and to transact all the business of the company during the intervals between the general meetings of the same.”
Thus we see that by the very charter of. incorporation the President and Directors were given very broad powers; but aside from this, the Board of Directors, are, as to all purposes of dealing with others, the corporation itself. When convened as a Board, as they were in this ease, all the directors being present and voting for the execution of the contract, they are the possessors of all the powers of the corporation. What they do as agents or representatives of the corporation is deemed to be done by the corporation. Hulings v. Hulings, 38 W. Va. 351, 18 S. E. 620. There are some things that the Directors can not do without the consent of the stockholders holding a certain percentage of the capital stock; our statute, section 83, chapter 54, Code, provides that on the affirmative vote, in person or by proxy, of the holders of at least 60 per cent of the outstanding capital stock, a corporation may sell in good faith all its property
In speaking of the powers of the boards of directors of corporations, Cook on Corporations, Yol. II,- sec. 712 (5th ed.) says:
“The Board of Directors have the widest powers. All of the various acts and contracts which a corporation may enter into are entered into by and through the board of directors. The board of directors make or authorize the making of notes, bills, mortgages, sales, deeds, liens and contracts generally of the corporation. They appoint the agents, direct the business, and govern the policy and plans of the corporation. The directors elect the officers, and in this connection it may be added that at common law there is no limit to the number of offices which may be held simultaneously by the same person, provided neither of them is incompatible with any other. They may institute, prosecute, compromise, or appeal suits at law and in equity which the corporation brings or has brought against it.” *
All the directors, including the three elected by plaintiff, concurred with the others and voted authority to the president to execute the contract. It thus became as binding on the corporation as it would have been had all the stockholders assented to it.
3. But conceding that the formal execution of the contract in that respect can not be questioned, yet plaintiff contends that the corporation has no authority to make it; that it is
But granting that the county court has the right to maintain the suit, still the contract is not ultra vires. Instead of rendering the Turnpike Company less able to perform its functions and to use its franchise it is clearly shown that it is made more able to do so. A wider and better road bed is provided. Instead of a worn out road of fifteen feet, it is furnished a permanent road bed twenty feet wide throughout the 275 lineal feet, except under the railroad bridge, where it is now twenty-three feet wide, and will be thirty feet wide when completed.. The Turnpike Company is at no expense for magintenance. Under the law it is now required to maintain its road .at a width of only fifteen feet. If it is increased to twenty feet or more, the public can not complain of failure, to comply with its franchise. So we hold the contract is not ultra vires, and the Turnpike Company, through its board of directors, had a right to make it.
4. But granting all we have said, if the proposed use of the right of way should result in creating a dangerous obstruction to the Turnpike, then plaintiff would have the right
Affirmed.