108 Ga. 402 | Ga. | 1899
W. B. Cummings and a number of others exhibited a petition in the superior court of Fulton county, making substantially the following case: On December 14, 1859, the Gate City Guard of Atlanta was incorporated by an act of the legislature as a volunteer infantry corps; the charter was accepted, and the company organized thereunder performed the duties named in the charter; as an organization it entered into the service of the Confederate Spates and served during the war between the States; after the termination of that war, the existence of. the company was suspended until 1876, when it was reorganized and continued as a military company under the charter until 1890. Between the years 1879 and 1890, by public subscriptions, fairs, etc., the company realized a large sum of money for the purpose of providing a home for its members and the continued exercise of its charter privileges, and such money was invested in the purchase of a site in the city of Atlanta for an armory and building thereon, the management of which was put in a board of trustees, chartered by the supérior court of Fulton county. In 1890, the legislature
After this decision some of the younger members of the company decided to form a military company under the general law of the State, which they did, and enlisted in the State service, and after their enlistment they claimed that by virtue of their organization they had the exclusive right to certain-of the charter privileges of the Gate City Guard. In this way they began to create dissensions in the company, and attempted to pass by-laws to curtail the rights of the old members and to
The petition was demurred to on several grounds, and at the hearing the petitioners tendered in writing an amendment, making other allegations, and praying that the property be sold and the proceeds, after paying the incumbrances, be divided among the parties entitled thereto. This amendment, having been objected to, was refused, and to this ruling and judgment the plaintiffs excepted. The court sustained the demurrer and dismissed the petition. To this judgment also the plaintiffs excepted.
We find it necessary to pass upon but one ground of the demurrer, and that is, whether the petition contains any ground for relief. An examination of the act of 1859 shows that certain persons and their associates were incorporated as a voluntary infantry corps of the city of Atlanta, under the name of the Gate City Guard, with power to sue and be sued, have a common seal, hold such property real and personal, whether obtained by gift or purchase, as may be deemed necessary or convenient for the purposes of the corps, and make by-laws for their own government. It was also provided that the number of men composing said corps should-never exceed the number of eighty privates, exclusive of the officers, and that all persons who were then enrolled or might thereafter enroll themselves as members of the corps, provided the number did not exceed eighty, should be declared exempt from jury, patrol, and militia duty; provided,' that the corps should at no time drill and parade a less number of times yearly than was required by the militia ■ laws of this State. It also provided for a president and secretary, and that the commanding officer of the corps should be president. It appears from this act, that the corporation had no capital stock, nor was there any subscription to be made by any of its members; that the property which it was authorized to acquire by donation or purchase was only such as was useful for the purposes of the corporation; that these purposes were' to be performed
The petition shows on its face, that several years ago the company, finding military duty onerous, declined to enlist in the military forces of the State, as the law required, and' were disbanded as a military organization by the commander in chief, and not allowed to drill and parade as a military organization. Having been incorporated only to perform duties which they allege became so onerous that they abandoned them, it seems to follow, as a matter of law, that the body ceased to exist as a corporation, by practically surrendering its franchise. Certainly, if the members failed to perform military duty, they could do nothing. So that, under the allegations. made, the petitioners show that they have no right as members of the Gate City Guard to any of the powers, privileges, or exemptions conferred upon the members of that corps under the act of incorporation. It is not a matter of concern whether the act incorporating the Gate City Guard constituted that organization either a public or a private corporation; nor is it necessary how for us to decide whether the organization still exists as a legal corporate body, nor whether as a corporation, in consequence of the non-user of the franchises for a period of years, coupled with the fact that under the laws of this State it was disbanded by the Governor, it has incurred a forfeiture of the original charter rights and privileges. The only question involved by the demurrer is as to the right of petitioners to control the property alleged to be owned by the corporation; and if it be foundthat the petitioners have no right to the control of such property, nor any interest in it, then the ultimate disposition of such property does not concern either this court or the petitioners. The company was organized for a purely public purpose, that of performing military duty for the ' State. The powers conferred were only such as were necessary for a military organization. The corporation had no capital stock, no shares of stock of any character; no subscription was required of its members; the only property which it was authorized un
■Judgment affirmed.