8 W. Va. 320 | W. Va. | 1875
plaintiff brouglit an action of ejectment against ¿efen(jan^ [n December, 1872, to recover from the defendant several lots of ground situate in the city of Wheeling, then in the possession of the defendant, and claimed by the plaintiff. The action was brought in the circuit court of the county of Ohio. The plea filed by the defendant was that “it is not guilty of unlawfully withholding the premises claimed by the plaintiff in its declaration and on this plea issue was joined. With the plea the defendant filed a written notice to the plaintiff that, on the trial of the cause, it would rely upon and give in evidence the award, &c., hereinafter mentioned. The plea and notice were filed in open court on the 23d day of May, 1873. Afterwards, on the 22d day of November, 1873, the defendant filed a general demurrer to the declaration, which contains but one count, and the plaintiff joined in the demurrer; and the court overruled the demurrer. On the 24th day of November, 1873, Ihe trial of the issue joined between the parties was commenced before a jury, and, on the 28th day of November, 1873, the jury, by their verdict, found the issue for the defendant. Upon the verdict the court rendered judgment in favor of defendant against plaintifl for the costs of suit in the usual form; but, during the same term, the plaintiff moved the court to set aside the verdict and-judgment, and afterwards, on the 24th day of February, 1874, the court overruled the motion. During the trial of the cause the plaintiff took twelve separate bills of exception to opinions and rulings of the court.
Bill of exceptions No. 1 recites that, after the jury were sworn, the plaintiff, to maintain the issue on its part, gave in evidence to the jury the act of the General Assembly of Virginia, passed March 18, 1850, entitled “An act to incorporate the Wheeling Gas Company.” This act is set forth in full in the exception, but I will
The first section of the act provides that the persons who shall, as “ hereafter ” mentioned, become subscribers to the capital stock “ hereby” created, and such other persons as shall “ hereafter ” become stockholders in the said corporation, are “ hereby ” created a body politic and corporate by the name and style of “ The Wheeling Gas Company,” with power by that name of contracting and being contracted with, and to sue and be sued, and to acquire, hold, occupy arid enjoy all such real and personal estate as may be necessary and proper for the construction, extension and usefulness of the works of the Company, &c.
The second section provides that the capital stock of the Company shall not be less than $50,000, with power to increase the same as thereinafter provided, without special limit of such increase.
The third section of the act appoints commissioners to raise subscriptions to the stock of the Company, and provides for the election of directors annually.
The fifth section authorizes the city of Wheeling to subscribe to the stock of the Company to an amount not exceeding $15,000.
The sixth section provides that the stock and all the property of the Company shall be deemed personal estate, and as such shall pass to the executors, administrators or assigns of the stockholders.
The eighth section provides that the corporation hereby created shall have full power and authority to manufacture and to sell gas, to be made from any or from all of the substances, or'a combination thereof, from which inflammable gas is usually obtained, and to be used for the purpose of lighting the city of Wheeling, or the streets thereof, and any buildings, manufactories, public places or houses therein contained, and to erect necessary works and apparatus for conducting the gas along the streets and alleys of the city.
The tenth section authorizes the directors for the general purposes of the Company, &c., to borrow money and seal and deliver therefor the bonds or evidences of debt of the Company in conformity with the terms of the loan.
The eleventh section provides that the directors shall have powder to make such by-laws and rules for their own government and for regulating the concerns of the Company, as they shall think requisite and proper respecting the management and disposition of the stock, property and estate of the Company, the duties of the artificers, officers and agents to be employed and all other matters pertaining to the concerns of the Company.
The fourteenth section provides that the Company shall have the exclusive privilege of using the streets, alleys, and public grounds of the city of Wheeling, for the purpose of laying down p>ipes for the conveyance of gas in and through the city, for the use of the city, and its. inhabitants, for the term of years “hereinafter” specified and upon the conditions following, viz: First, that the assent of the Council of the said city shall be first had and •obtained. * * * Fifth, the gas to be furnished by said. Company shall be taken and consumed by the inhabitants •of the city only on contracts to be entered into between
The fifteenth section provides that whenever application in writing shall be made by the owner or owners of
The sixteenth section provides that the council of the city shall be authorized to pass ordinances for the protection of the works and property of the Company, of any and every kind, from injury, by adequate fines and penalties, and to enforce the payment thereof, in the mode prescribed by the charter of the city.
The seventeenth section provides, “that the said Company shall have the sole and exclusive privilege of using the streets, alleys and public grounds of the city for the purpose of lighting the city with gas, for the full term and period of thirty years, from the time said Company shall commence the distribution and supply of gas, of which time notice shall be given by said Company, to be entered amongs the records of said city, the assent of the said city being first had and obtained-as hereinafter provided: Provided always, That upon the expiration of twenty years from the commencement of said exclusive privilege, hereby granted, and within six months thereafter, the said city of Wheeling shall have the right,, at the discretion of the Council thereof, and of which notice shall he given in writing to the said Company, to purchase the said lots or grounds, works, apparatus, fixtures and property of said Company, at the price and upon the terms to be agreed between the Council of the said city and the directors of said Company, or to be fixed, ascertained and determined in the following manner: By the
The eighteenth section provides 'that this act shall be in force from its passage.
And also gave evidence to the jury tending to prove that §50,000 of the said capital stock of the Gas Company had .been subscribed for and taken pursuant to said act. Before the 11th day of May, 1850, and that the Company was on that day duly organized as a corporation, under and by virtue of the said act, and for the purposes therein mentioned; and, also, that the plaintiff held the title in fee of the premises claimed in the declaration, and had the right to the possession thereof at the commencement of this suit.
Thereupon, the defendant gave in evidence to the jury the said ordinance of the city of April 15th, 1850, which gives the assent of the city to the terms, stipulations and conditions contained and set forth in said act and granted to the Company, so soon as, and whenever organized under the said act, the sole and exclusive privilege of using the streets, alleys and public grounds of the city for the purpose of lighting the city with gas; Provided, however, anything in this ordinance contained to the contrary notwithstanding, that the Company shall,, before any of the streets, alleys or public grounds are-
The defendant also gave evidence to the jury tending to prove that the twenty years from the time the Company commenced the distribution of gas, under and by virtue of the said act, expired on the 1st day of January, 1871; and that the defendant gave notice, pursuant to the act, of its intention to purchase according to the provisions of the seventeenth section of the act, the lots or grounds, works, apparatus, fixtures and property of the plaintiff; and the price and terms of the purchase not being agreed between the Council of the city and the directors of the plaintiff, written negotiations to that end between the parties having proved ineffectual, three persons, viz: Beverly M. Eoff, John McLure and Robert B. Woods, were duly chosen according to said act, and the respective parties notified thereof in writing on or before the 24th day of January, 1871, to fix, ascertain and determine the price and terms upon which the purchase should be made; and that the said three persons did, jointly and together, hear, receive and consider the allegations made and evidence produced before them touching the matter submitted to them on divers days and times after the said 24th day of January, 1871, and before the 29th day of May, 1871; and two of them, viz: Robert B. Woods and John McLure, did, on the 29th day of May, Í871, (the third, Beverly M. Eoff, then and there dissenting therefrom,) make and sign, and cause to
And the defendant then offered to give in evidence to the jury the said instrument of writing which is as follows, to-wit: “To all to whom these present come greeting: Whereas, it is, among other things, provided in the seventeenth section of the act of the General Assembly of Virginia, entitled, “An act to incorporate the Wheeling Gas Company” passed March 18, 1850, that upon the expiration of twenty years from the commencement of the exclusive privilege granted in said act to the said Wheeling Gas Company, and within six months thereafter, the city of Wheeling should have the right at the discretion of the Council thereof, of which notice should be given in writing to said Company, to purchase the lots or grounds, work, apparatus, fixtures and property of said Gas Company, at the price and upon the terms to be agreed upon between the Council of said city and directors of said Company, or to be fixed, ascertained and determined by an award in writing of three persons to be chosen — the first by the directors of said Company, the second by the Council of said city, and the third by the two thus chosen; that the arbitrators thus, chosen, in making up their award, and in ascertaining the value of the property and effects of said Company, should have regard, alone, to the then actual value in money of the lots or grounds, buildings, apparatus, works and fixtures of said Company, and shall not consider the value of the franchises of the charter of said Company or the dividends or profits accruing to the stockholders : And whereas, the said city of Wheeling did, on the 14th day of December, 1870, give notice in writing to the- said Gas Company that it claimed the right to purchase the lots or grounds, buildings, apparatus, works and fixtures of said Company ; and whereas, the said directors of said Gas Company, by a resolution passed on the 14th day of January, 1871, did choose B.
Robt. B. Woods.
JNO. McLube.
I dissent from the above
May 29, 1871. B. M. Eoef.”
Thereupon the plaintiff objected to the said instrument of writing being given in evidence to the jury, upon the ground that it was and is, of no force, effect or validity as an award under the aforesaid act of the General Assembly of Virginia, and could not and did not confer on the defendant any right to the real estate in the declaration mentioned, or the possession thereof. But the court overruled the objection, and permitted the said instrument of writing to be given in evidence to the jury by the defendant. To which opinion and ruling of the court the plaintiff excepted in due form.
On motion of the plaintiff, it is ordered, without prejudice to the rights of any party to this cause, that the-
The plaintiff then gave evidence to the jury tending to prove that the board of directors and stockholders of plaintiff had not, nor had cither of them, conferred any authority on or upon the said president and secretary and treasurer of the plaintiff, or either of them, to accept the money so tendered as aforesaid, or to execute, or agree to execute, on behalf of the plaintiff the said draft of a deed, or any authority upon the president, secretary and treasurer, superintendent and laborers, or any one or more of them to give to the defendant possession of the said works and real estate, or assent to the defendant taking possession thereof; that a meeting of the directors of the plaintiff was called and held on the 2d day of June, 1871, as the president and secretary had, on the previous day, promised to the said gas commissioners would be done; and that the proceedings aforesaid of the defendant, being reported by the president and secretary to the said meeting, the directors of the plaintiff thereupon adopted this resolution:
“ Hesolvecl, That notice be given through the newspapers of the city to" the stockholders of the Wheeling Gas Company to meet at Hornbrook’s Hall, Main street, at two o’clock Tuesday, 6th of June.”
That the stockholders of the plaintiff met on the 6th day of June, in general meeting, pursuant to the said resolution and the notice given thereunder, and at the said meeting the following proceedings were had, viz:
‘•Wheeling, June 6,1871. — Pursuant to a call through the city papers, a meeting of the stockholders of the Wheeling Gas Company Aras held at Hornbrook’s Hall, .at tAvo o’clock this day, a large majority of the stock being present in person and by proxy. The meeting was ■called to order, and Major A. Loring elected chairman
“ Resolved by the stockholders of the Wheeling Gas Company in general meeting assembled, That the president and directors of the Company be and are hereby directed to employ all such counsel and take all such measures as they may deem expedient and proper to maintain the rights and interests of the Company in relation to the matters now in controversy between the Company and the city of Wheeling, and to appoint such committees and agents for the purpose as they deem necessary.
■ “The resolution was unanimously adopted. On motion of C. D. Hubbard, Esq., it was
“ Resolved, That when this meeting adjourn, it does so to meet on Wednesday, the 5th day of July, 1871, at two o’clock.
“ On motion of A. B. Caldwell, Esq., the meeting then adjourned.”
That at a meeting of the directors of the plaintiff, held on the 10th day of June, 1871, the following preamble and resolutions were adopted, viz:
“ The stockholders of this Company having authorized the directors to act in relation to the matter in controversy between the Company and the city of Wheeling:
“ 1. Resolved, That we do not acquiesce in or accept the valuation of the property and works of the Company lately made by Messrs. Woods and McLure.
“2. Resolved, That we protest against the acts of the city authorities in taking forcible possession of the works and property of the Company, and proceeding to exercise its corporate franchises as wholly unwarranted in law.”
Which preamble and resolutions were accordingly communicated by the plaintiff to the Council of the city of Wheeling, at a meeting of said Council, June 13th, 1871. The defendant also gave evidence that there was no meeting of the stockholders of the Gas Company, and no election of directors or officers from July 10th, 1871, until August 12th, 1873. Whereupon the plaintiff moved the court to exclude from the consideration of the jury the aforesaid instrument of writing, purporting to be an award, and the evidence aforesaid respecting the tender of said money and draft of a deed, and said subsequent proceedings of the defendant, upon the ground that said instrument, purporting to be an award, together with the tender as aforesaid, and the possession so taken and held by the defendant, do not constitute a defence, of which the defendant should be allowed to avail itself of in the present action. But the court overruled the motion and refused to exclude the said instrument of writing, and the evidence respecting the said tender and subsequent proceedings of the defendant from the jury. To this opinion of the court the plaintiff also excepted in due form.
Bill of exceptions No. 3 states that after the evidence was given to the jury as stated in bills of exception Nos. 1 and 2, the plaintiff moved the court to instruct the jury that the matters so given in evidence, on behalf of the defendant, do not constitute such an equitable right to the possession of the premises described in the declaration, as bars the right of the plaintiff to recover possession thereof in the present action, and the jury should therefore find for the plaintiff. But the court refused to give the instruction, and the plaintiff again excepted in clue form.
By bill of exceptions No. 5, it appears that after evidence was given to the jury, as stated in said bills of exception Nos. 1 and 2, the plaintiff moved the court to instruct the jury that the evidence offered by the defendant, as set forth in bills of exception Nos. 1 and 2, is-not an equitable defense as is contemplated by chapter ninety of the Code of West Virginia, and should not. be considered by the jury. Bat the court refused to give this instruction to the jury, and the plaintiff excepted to the opinion of the court in due form.
By bill of exceptions No. 6, it appears that after evidence was given to the jury as set forth in said bills of exception Nos. 1 and 2, the plaintiff moved the' court to instruct the jury that the equitable title as set up as a defense to this action, a proper legal tender must, among other things, be proven to the satisfaction of the jury.
gy 0f exceptions No. 7, j-fc appears that after evidence was given to the jury as set forth in said bills of exception Nos. 1 and 2, the plaintiff moved the cour} to instruct the jury that unless the jury are satisfied from the evidence that the alleged tender was made to persons authorized to accept the same, then the same is invalid, and must be disregarded by the jury. This instruction the court also refused to give, and the plaintiff excepted.
By the bill of exceptions No. 8, it appears that after evidence was given to the jury, as set forth in said bills of exception Nos. 1 and 2, the plaintiff moved the court to instruct the jury that the act of incorporation of the Wheeling Gas Company, passed March, 1850, did not give to the president and secretary authority to accept the tender alleged to have been made on the 1st of June, 1871, and that to make the same valid it must appear that they were authorized by the Company, or the directors thereof, to receive the same. This instruction the court also refused, and the the plaintiff excepted.
By bill of exceptions No. 9, it appears that after evidence was given to the jury as stated in said bills of exception Nos. 1 and 2, the plaintiff moved to court to instruct the jury that if the jury believe from the evidence that the city of Wheeling did, on the 1st day of June, 1871, at the office of the plaintiff, tender the president and secretary of the plaintiff the sum of money specified in the instrument of writing signed “Robert B. Woods,” “John McLure,” and dated the 29th day of May, 1871, and did, also, then and there, tender to the said president and secretary, and demand the execution of a proper draft for a deed to convey and assure to the said city of Wheeling the lots or grounds, buildings, apparatus, works, fixtures and property of the plaintiff, together
By the bill of exceptions No. 10 it appears that after evidence was given to the jury as set forth in said bills of exception, Nos. 1 and 2, the plaintiff moved the court to instruct the jury, that if the jury believed from the evidence, that the city of Wheeling, by its gas commissioners, duly authorized, in that behalf, by it, did, on the first day of June, 1871, at the office of the plaintiff tender to the president and secretary of the plaintiff the sum of money specified in the paper writing signed “Robt. B. Woods/7 “ Jno. McLure,” and dated the 29th day of May, 1871, as and for the sum to be paid to the plaintiff for the lots or grounds, works, apparatus, fixtures and property of the plaintiff in the said paper mentioned, and further believe from the evidence that the said president and secretary had not in fact, nor had either of them, any authority, from the plaintiff, to accept or receive the money so tendered, then the tender as aforesaid is of no effect against the plaintiff. This instruction, the court refused to give and the plaintiff excepted.
By bill of exceptions No. 11 it appears that after-evidence was given to the jury, as stated in said bills of exception, Nos. 1 and 2, the plaintiff moved the court to instruct the jury, that if the jury believed from the evidence that under and pursuant to the act of the legislature of Virginia passed March 18, 1850, entitled “An
By bill of exceptions ifo. 12 it is shown that after evidence was given to the jury as set forth in the said bills of exception dSTos, 1 and 2, the defendant moved the court to instruct the jury, that if the jury believe from the evidence, that the defendant, by its authorized agents, on the first day of June 1871, at the office of the plaintiff, tendered to the president and secretary of the plaintiff the sum of money specified in the award of the 29th day of May, 1871, as and for the ascertained price or value of the premises in controversy and the property in said award referred to, and also a draft of a deed for said property to be executed by the plaintiff to the defendant and that afterwards, and before the 30th day of June, 1871, the board of directors or the stockholders of the Wheeling Gas Company, in meeting assembled, with knovdedge of such tender, formally refused to accept or comply with the provisions of said award, and gave notice of such decision to the defendant then the action of the defendant was a sufficient compliance with the said award. To the giving of this instruction to the jury by the court the plaintiff objected and the court overruled the plaintiff’s said objection and the plaintiff accepted.
To the judgment of the circuit court, rendered in this cause, the plaintiff has obtained a supersedeas from one of the Judges of this Court, and in his petition for the super-
No errors have been assigned or argued before us except those above referred to.
I deem it proper before proceeding to consider the questions to be determined in this cause, to refer to, and state some legislation had prior and subsequent to the passage of the said act incorporating the Wheeling Gas Company which may have some bearing or shed some light upon the most material questions presented by the record.
On the 13th day of February, 1837, the General Assembly of Virginia passed an act, entitled “An act prescribing general regulations for the incorporation of manufacturing and mining companies.” The fifteenth section of this act is as follows: “15. That all acts for the incorporation of manufacturing or mining companies passed after the passage of this act, shall continue in force for the period of thirty years, and no longer, and shall at all times, after the lapse of fifteen years from the organization of the company, be liable to be amended or repealed at the pleasure of the legislature, in the same manner as if an express provision to that effect was therein contained, unless there shall have been inserted in such act of incorporation an express provision to the contrary.”
The code of Virginia of 1849, was passed by the said General Assembly in the month of August, 1849, and its provisions become “in force upon and after” the first day of July, 1850. By the seventeenth section of the
“jRule Third: Words purporting to give authority to three or more public officers or other persons, shall be construed as giving such authority to a majority of such officers or other persons; unless it shall be otherwise expressly declared in the law giving the authority.”
By the seventeenth section of chapter thirteen, of the Code of West Virginia it is provided, among other things, as follows : “17. The following rules shall be observed in the construction of the statutes, unless a different intent on the part of the Legislature be apparent from the context. Second. Words purporting to give a joint authority to three or more persons, confer such authority upon a majority of them and not upon a less number.” The said act of February 13, 1837, was in force at the date ofthe passage of the act incorporating the plaintiff, so far as I am at present advised, and the fact of its being then in force was not controverted by the counsel for the plaintiff.
No question has been made or argued here touching the sufficiency of the declaration, and, on examining it; I think there can be no question as to its being good.
The first question to bo determined upon errors assigned is, whether the instrument of writing dated the 29th day, of May, 1871, purporting to be an award, is a valid and binding award. If it is not, then all other errors assigned are immaterial and unnecessary to be determined; because they are predicated upon the award being invalid. But if the award is valid, then the most important question in the cause is with the defendant, and other errors assigned must be determined, because they fairly arise upon the record, and are material and .necessary to a proper judgment to be rendered in the
First, the Council of the city sought to make the pur7-chase by negotiation and agreement with plaintiff, as to the price and terms, and failing to negotiate the purchase in this Avay, they resorted to the only other remedy to enforce its right to make such purchase specified in said seventeenth section, and that Avas by the choice of three persons, the first by the directors of the plaintiff, the second by the said Council, and the third Avas chosen by the íavo thus chosen, to make an award as to the price to be paid for the plaintiff’s said property, and the terms of the purchase according to the provisions of said seA7enteenth section. All this, it Avas admitted in argument, Avas done in pursuance of said seventeenth section, and in accordance Avith its provisions upon that subject. The persons thus chosen, Avho are called arbitrators in the said seventeenth section, accepted and took upon themselves the duties and burthens prescribed by said seventeenth section, and after jointly meeting, acting and hearing the allegations of the parties, and such evidence as the parties adduced before them, touching the subject of their inquiry, the three persons thus chosen to make an aAvard in the premises, tor some cause, failed to agree upon the value of the property, and the terms of the
In modern times courts regard the settlement of controversies and disputes between persons by arbitration with more favor than formerly, and for the purpose of sustaining awards, ordinarily, they construe both the submission and award liberally. In interpreting the sub-' mission regard is principally to be had to the intention of the parties, and a fair and liberal construction is to be adopted, without too gi’eat verbal accuracy. The court will transpose or reject insensible words. Caldwell on Arbitration, 2d Am. ed. 65. The courts will always seek to uphold a submission in spite of a defectin formality, according to the obvious intent of the parties•„ Morse on Arbitration and Award 47, and the cases there cited in note 6. The courts will always seek to put as liberal, large and comprehensive a construction upon the
The city of Wheeling is a municipal corporation. She, as a corporation, was created by state .legislation. As a corporation the State may increase or diminish her powers. She is subject to the legislative will of the State, and may be extinguished by the Legislature at its pleasure. She exercises a part of the sovereign power • of the State. She is a part of its governmental power. She is not subject to taxation by Congress upon her municipal revenues. United States v. Railroad Company, 17 Wall. (Sup. Ct. U. S.) 322; Dillon on Corporations, vol. 1, ch. 4; Angel and Ames on Corporations, sections 16 and 31. In the case of the City of Richmond v. Long’s Admrs., 17 Gratt., 375, Judge Rives, in delivering the unanimous opinion of the court, says : “The functions of such municipalities are obviously two fold; first, political, discretionary and legislative, being such public franchises as are conferred on them for the government of their inhabitants, and the ordering of their public officers, and to be exercised solely for the public good rather than their special advantage ; and secondly, those ministerial, specified duties which are assumed in consideration of the privileges conferred by their charter. Within the sphere of the former, they are entitled to this exemption, in as much as the corporation is a part of the governmemt to that extent, its officers are public officers, .and as such entitled to the protection of this principle ;
I proceed to further examine this award in other aspects, and, after so doing, I am of the opinion that the .said instrument of writing, dated the 29th day of May, 1871, and purporting to be an award, is, under the circumstances, a valid award, although it was agreed to and .signed by only two of the arbitrators so agreeing. It is manifest, as I think, and clearly inferrible, from the reading of the act by which plaintiff was incorporated, that
Mrst. That the Council of the city should have, and was given by the said seventeenth section, in their discretion, the absolute right to purchase the gas works and property, and become possessed thereof, after the expiration of the twenty years aforesaid, and that the purchase should be made at the price and upon the terms to be agreed upon between the Council of the city and the directors of the plaintiff, or by an award in writing, fixing the price and terms of the purchase, made by arbitrators.
Second. That, in the event the Council of the city elected to make the purchase, and the Council of the city and the directors of the plaintiff could not agree upon the price and the terms of the purchase, the price and the terms should be fixed, ascertained and determined, at all events, by an award of the arbitrators.
Third. That the remedy given by arbitration should be complete, effective and reasonably expeditious.
Fourth. That it should not be absolutely essential or necessary to the validity of the award that more than a majority of the arbitrators should agree to and sign the same — they all acting jointly.
Fifth. That the price and the terms of the purchase should be fixed, ascertained and determined by the arbitration, and the purchase and possession of the gas works, property, &c., by the Council of the city, should be completed and had by the city upon its complying with the terms of the award so made as aforesaid, or in good faith offering to do so by a legal tender of the money specified, or the equivalent of a legal tender, at or within the time prescribed by the award. It would be a discreditable reflection upon the wisdom and foresight of the legislature to suppose that it had given the Council of the city an absolute right to purchase the gas works, property, &c., in their discretion, at their reasonable value, excluding the value of the franchise of the charter and the
It is argued by the defendant’s counsel that the plaintiffs Company is a manufacturing company and its act of incorporation within the meaning and purview of the the fifteenth section of the act of the General Assembly of Virginia, hereinbefore quoted, and that the seventeenth section of chapter sixteen of the code of Virginia of 18d9 before mentioned and quoted, applies to the seventeenth section of the plaintiffs act of incorporation and operates thereon in the construction thereof. The plaintiff’s charter was passed March 18, 1850, and took effect from its passage; The defendant’s assent was given April 29, 1850, and the plaintiff’s Company was organized May 11, 1850 — the capital stock of §50,-000 having then been subscribed and taken. The code of 1849 was passed August, 1849, but did not take effect until the first day of July, 1850; which was after the plaintiff’s charter took effect, and near two months only after plaintiff’s Company was organized, and the fifteenth section of said act of 1837 provides that all acts for the incorporation of manufacturing companies shall, at all. times, after the lapse of fifteen years from the organization of the company, be liable to be amended or repealed at the pleasure of the legislature. It is not necessary to decide this question as under the view I take of the case it does not properly arise.
But as it is evident that it is contemplated by said seventeenth section of plaintiff’s act of incorporation, that plaintiff should have only the reasonable value of the property in money from the defendant, it is argued with great force and plausibility that said rule third of the sixteenth chapter of the code of 1849 may properly be applied to the award in this case, if neces
The twenty-third section of chapter fifty-two of the Code of 1868 provides that “corporations now existing shall continue to exercise and enjoy their powers and privileges according to their respective charters and the laws now in force, and shall continue subject to all the liabilities to which they are now subject; except so far as such powers, privileges and liabilities are modified or controlled by this act.” It is argued by the counsel of defendant that as the Code of 1868 of West "Virginia, like the code of1849 of Virginia, is but one act, that under the provisions of the section of the code of 1868 last above quoted, and the fifteenth section of the said act of 1837, the second paragraph or rule of the seventeenth section of chapter thirteen of the Code of 1868, which I have before quoted and copied herein, may properly be applied to the seventeenth section of plaintiff's charter as to the authority of the majority of the persons chosen to arbitrate ; and to so apply it a majority of the arbitrators would be clearly authorized to make the award. As the the fifteenth section of the said act of 1837 seems to have been in force at the passage of plaintiff’s charter, by the express provisions of said fifteenth section the plaintiff’s charter, became subject thereto as to the power of the Legislature to amend as much as though it was incorporated therein as a part thereof1 — plaintiff’s charter not containing an express provision to the contrary. The Code of 1868, by its express provisions, took effect on the first day of April, 1869, more than fifteen years after the organization of plaintiff’s Company. According to the provisions of the seventeenth section of chapter thirteen of the Code of 1868, rule the second of that sec-
I now proceed to ascertain whether the circuit court erred in permitting said award to go in evidence to the jury. From the evidence given to the jury, as I have stated it, as appearing in bills of exception Nos. 1 and 2 and the law applicable to such a case, the circuit court properly permitted the award to go in evidence to the jury and that it did not err in this respect. The evidence given to the jury tended to prove that on the 29th day of May, 1871, the date of the award and after the award was made and signed it was delivered to both plaintiff and defendant. Plaintiff, therefore, on that day, had notice of the award and its contents and the right of defendant to pay or tender the price specified in the award on any day after the date thereof, within the time specified therein. The office of the plaintiff was the most appropriate and proper place for the defendants to pay or tender the price in money, specified in the award. If the directors of the plaintiff did not specially and specifically direct or authorize the plaintiff’s president or secretary (who was also the treasurer of plaintiff,) to accept or receive from defendant the said price money, prior to the first day of June, 1871, when tendered, it
The evidence also tends to show that if plaintiff did not receive the money it was not because it was not properly tendered or deposited in bank, nor for any cause save and accept that plaintiff denied the validity of the award. But the evidence further shows that neárlyone year prior to the commencement of this suit, on plaintiff’s motion in a chancery cause then pending on the chancery side- of the circuit courtof Ohio county, wherein it was and is, plaintiff, and the defendant and others, defendants, procured the court to assume to take control of the money so deposited in the bank and bring it into that cause by ordering it to be paid into the hands of Daniel C. List, the receiver of the court, upon the terms stated in the order. The evidence given to the jury by the defendant further tends to show that after defendant had tendered and deposited the money, as before stated, and after notice to the plaintiff’s president and secretary of its intention to do so, on the said 1st of June, 1871, the defendant, by its authorized agents, obtained peaceable possession of the property in the declaration mentioned, from the plaintiff’s superintendent and employees, without objection from them at the time, under a claim of the defendant, of its right so to do. And under said claim of right the defendant continued and remained in the possession of said property until the commence■ment of this suit and presumptively until the present.
By reference to 5 W. Va. 448, it will be seen that at the July term, 1872, of the then Supreme Court of Appeals of this State, this award was considered and passed upon, in some respects, by that Court. From the statement of the case and the opinion of the Court it would seem that the Gas Company filed a bill in the circuit court of Ohio county to set aside said award, among other things, because of alleged partiality and misconduct of John McLure, one of the arbitrators who signed the award. Judge Maxwell, in delivering the opinion of the Court, said, “It appears that Eoff, the arbitrator chosen by the Gas Company, is a stockholder in the Company and interested in the result of the arbitration, and that he was appointed arbitrator because he was a stockholder and because it was understood that Mc-Lure was to be appointed by the city.” Again he says, “without commending the expediency of such references, the court can entertain no doubt of the validity of an award made under such circumstances, nor could the parties be heard to impeach the award in this case under the circumstances of the appointment and conduct of the arbitrators. Especially should this be so, when, so far as the record discloses, the amount of the award seems
Entertaining the views I have declared in the premises, I am of opinion and consider that there was and is
The instruction asked for by the plaintiff in the sixth bill of exception mentioned to be given by the court to the jury was “that in order to perfect the equitable title set up as a defense to this action, a proper legal tender must, among other things, be proven to the satisfaction of the jury.” This instruction was asked after evidence was given to the jury as set forth in bills of exception Nos. 1 and 2, as stated in said bill of exceptions No. 6. As has been stated, this instruction was refused by the court. This instruction is, I think, justly subject to criticism and objection for vagueness, and as being well calculated to mislead and deceive the jury in this case. It is asked to be given as an abstract proposition of law, and assumes that a proper legal tender must, among other things, be proven, to the satisfaction of the jury in order to perfect the equitable title set up as a detense to this action. What do the words, “proper legal tender,” as employed in this instruction mean, or what construction might a jury reasonably place upon them ? Do they mean that the defendant should have actually tendered the price fixed in the award in money to the directors of the plaintiff, or to the stockholders of the plaintiff, in order to perfect the defendant’s equitable title to the property, set up by the defense, or to some person, or persons, specially and expressly authorized for the purpose by the plaintiff’s directors ? It is manifest that a jury might give to the words employed such construction and be thereby deceived and mislead as to the law. To whom is it meant by the words employed the tender should have actually been made? The instruction does not specify. The jury is left to determine the legal question as to what persons or officers of the plaintiff a tender made to of the money were proper persons to pay or tender payment of the money to.
No exception appears to have been taken to the judgment of the court in overruling the plaintiff’s motion to set aside the verdict and judgment in the cause; it is therefore unnecessary to consider the action of the court in this respect.
Upon full consideration of the whole case it seems to me that there is no error in the judgment of the circuit •court, for which the same should be reversed for the reasons above stated. The judgment of the circuit court must, therefore, be affirmed with costs and $30 damages to the defendant in error against the plaintiff in error.
Judgmen't Affirmed.
