102 Mich. 547 | Mich. | 1894
This action was instituted to charge defendant with a debt of the Harris Photographic Supply Company, a corporation in which he was one of the directors. It is based upon section 12 of Act No. 232> Laws of 1885, being section 416151, 3 How. Stat. This section, after providing that annual reports shall be filed by the directors of corporations, proceeds:
“If any of said directors of any such corporation shall willfully neglect or refuse to make the report required by this section, they shall each be liable for all the debts of such corporation, and subject to a penalty of 825/’ etc.
Two questions are discussed in the briefs of counsel in this Court:
1. Whether the statute is to be so construed as to render all of the directors liable in case of the willful neglect of one or of a majority of the directors.
2. Whether, in the absence of proof, the failure to file a report is to be presumed willful, and, if- such a presumption obtains, whether it was conclusively overcome by the testimony in this case.
Statutes imposing liability of the character here sought to be established have been uniformly held to be penal in
We think there is little difficulty in construing this statute. The meaning of the statute is that such of the •directors as willfully neglect or refuse to make the report shall be liable. The same persons, precisely, as are made liable for the indebtedness, are made subject to a further penalty." It cannot be assumed that the Legislature intended to impose the penalty upon one director for the willful neglect of his fellow director, unless the language ■employed imperatively calls for this construction, and such, we ¿hink, is not the case here.
We are cited to the case of Van Etten v. Eaton, 19 Mich. 187, as sustaining the plaintiff’s contention that all •of the directors are liable in case of the intentional neglect •of less than all. _ But the statute there under consideration was essentially different from the one here being considered. That statute, being section 23 of the act -of February 5, 1853 (Comp. Laws 1857, p. 580), reads:
“ If the directors of any such company shall intentionally neglect or refuse to comply with the provisions and to perform the duties required of them by sections 3, 5, 18, •and 19 of this act, they shall be jointly and severally liable, in an action' founded on this statute, for all the •debts of such corporation contracted during the period of such neglect or refusal; and such of them as were present .and acting as such directors at any time during such neglect or refusal shall be guilty of a misdemeanor, and may, on conviction thereof, be fined a sum not exceeding $5,000,” etc.
It will be noticed that this statute dealt with the -directors collectively, and treated of the neglect as the neglect of the board of directors, the condition being, “if
We think, on the authority of Van Etten v. Eaton, it should be held that a presumption arises that the failure to file the report required by statute was,intentional, and therefore willful. It was said in that case:
“ If the plaintiff should be required in the first instance to prove by direct evidence the actual intent in the minds of the delinquent directors, and should be precluded from making proof by inference from the fact of omission to perform the act required by the statute, the object of the law would be seriously obstructed, if not, in many cases, altogether defeated.”
This language was used with reference to the contention made by the plaintiff in error in that case—
“ That it was necessary that the plaintiff show that the neglect imputed to the directors was intentional, and that, whatever inference as to intention might properly be drawn from the bare omission to report, the jury were not bound to consider it as sufficient evidence of an intention to neglect the duty, although no explanation of the cause or reason of the failure was submitted.”
The judgment will be affirmed, with costs.