47 Fla. 163 | Fla. | 1904
— This was an action of assumpsit brought by plaintiff in error against defendants in error in the Circuit Court of Escambia county. The defendants demurred to the declaration, and the demurrer was sustained. Plaintiff filed its amendment to the declaration, and the court
From the allegations of the original declaration it appears that on January 20, 1893, the defendants filed in the office of the Secretary of State a proposed charter of a corporation to be known as Creary Mercantile Company with a capital of $40,000, and having published the notice • and otherwise complied with the statutes relating to the organization of corporations for profit application was made to the Governor for letters patent which were granted February 16th, 1893, by the terms of which the defendants, their associates and successors were incorporated into a body politic and corporate in deed and in law by and under the name proposed, with authority, to exercise the powers and privileges of a corporation, in accordance with the charter and laws of Florida. Under the provisions of this charter certain officers including that of treasurer were provided for, and certain corporators were named to fill those offices until the first election, J. E. Creary being so named as treasurer. On the day the letters patent were granted, there was filed with the Secretary of State, an affidavit in the following language:
“State of Florida, , 1 County of Santa Rosa, j
J. E. Creary, treasurer of the Creary .Mercantile Company of Milton, Florida, being duly sworn upon his oath says, that more than ten per cent, of the capital stock of the said corporation has been subscribed and paid into the treasury thereof. (Signed) J. E. Creary.
Sworn to and subscribed before me this 14th day of February, A. D. 1893.
(L. S.) C. J. Perinot,
Notary Public in and for said State and county.”
The statute did not declare in express language the personal liability of the stockholders as a result of the failure to file the charter or to secure the subscription to and payment of ten per cent, of the capital stock.
, Analyzing the section of the Revised Statutes above referred to we ascertain that it applies to the corporation after it has obtained its letters patent and it prohibits the transaction of business by such corporation so as to relieve its stockholders from personal liability until it has complied with certain requirements, but no such consequences were expressly declared for failure to comply, under the previous laws. It does not provide that the corporation shall not “exist” or be deemed “lawfully organized” until it complies with the requirements, but it merely prohibits the transac
Corporations are creatures of law. They have no powers except such as are conferred expressly or impliedly. The principal, object of incorporating being to relieve the stockholders from personal liability, and to constitute some agents of the others with powers that can not be withdrawn at the will of one or a minority, the legislature has the right to qualify or even continue the personal liability of stockholders, or to exempt them from the corporation debts upon such terms as it may'choose, the matter resting entirely in its discretion.
The first safeguard thrown around the exemption from liability by this statute is that which requires the letters patent to be filed in certain public offices. Another requires that affidavits shall also be filed in those offices, showing that a certain percentage of the capital stock has been subscribed and paid. In other States there are statutes of somewhat similar import. One of the New York statutes was construed in Flash v. Conn, supra, where the court held the stockholders personally liable as required by the statates for failure to comply with their requirements. The same was true in Heuer v. Carmichael, supra, where the articles of incorporation failed to fix the highest amount of indebtedness to which the corporation might be subjected, and in Loverin v. McLaughlin, supra, where the certificate of incorporation had not been recorded. So in Bolen v. Crosby, 49 N. Y. 83, it was held under a statute requiring certain reports to be made, to be signed by a majority of the trustees and verified by the oath of the president or secretary that the secretary might prepare the report and verify it, but he could not subscribe to it the names of the trustees so as to.relieve them from the statutory liability for failure to make the report. So in President and Directors of the Manhattan Company v. Kaldenberg, 165 N. Y. 1, —, N. E. Rep. —, it was held that a report required to be verified by the president and secretary, in order to relieve the direct
In the present case an affidavit that ten per cent, of the capital stock of the corporation had been subscribed and paid was filed with the Secretary of State on the day the letters patent issued, and a duplicate of that affidavit was filed in the clerk’s office of Santa Rosa county the next day. We may assume that these affidavits were filed by direction of the company. Do they comply with the requirements of
As we understand the argument for defendant in error, it rests upon the doctrine of ratification. It is thought that though the affidavits were made before, they were filed after the corporation began to exist, and that such filing ratified the affidavits and made them effective from the latter date. But such ratification can not have the effect of causing the affidavits to speak as of the latter date, for the doctrine of ratification can not be held to change the real effect of the affidavits and thereby convict the affiant of perjury. Sup
Our corporation laws are very liberal and.there is no need for dispensing with the provisions under discussion. These provisions are easy to comply with and constitute the only conditions to the exemption from personal liability of stockholders. They are safeguards against the improper use of our laws relating to incorporation and should be enforced according to their plain and unambiguous meaning. If the present affidavits can be made to answer the purposes of the statute, then similar affidavits speaking of a
The judgment of the Circuit Court is reversed, with •directions to overrule the demurrers, and that such further proceedings be had as may be conformable to law, and consistent with this opinion.
Shackleford and Whitfield, JJ., concur.
Taylor, C. J., and Hocker and Cockrell, JJ., concur in the opinion.