Lallande v. President of the Louisiana State Insurance

9 La. 326 | La. | 1836

Bullard, J.,

delivered the opinion of the court.

The petitioner in this case, alleges that the defendants being at the time the president and directors of the Louisiana State Insurance Company, were constituted a board of commissioners to superintend the opening of the'books for the subscription to the capital stock of a new corporation, created by act of the legislature of the 27th March, 1835, styled the Louisiana State Marine and Fire Insurance Company ; that they accepted that trust, and gave public notice in the newspapers that the subscription would be opened on the 6th of April; that the plaintiff, with many others, were present at the time appointed, and offered to subscribe, and pay, at the time of subscribing, twenty dollars on each share, as required by the charter, but that their offer was refused. He further alleges, that John K. West, one of the commissioners, at the very moment fixed by the advertisement, arid without announcing that the books were opened for subscription, took aside the books, and either for his own account, or as the pretended agent of others, subscribed for almost the whole amount of the capital stock, without offering to all persons present the least opportunity to subscribe; that the twenty dollars per share, as required by the charter, was not paid. He further alleges, that the books were not regularly opened, according to the true intent and meaning of the charter; that a quorum of the commissioners was never present to superintend the-subscription, until after the president announced that the subscription was filed and the books closed. He alleges that he has been greatly injured by this illegal conduct of the commissioners, and deprived of a right given him by the charter; that fraud and deception were employed, contrary to the true intent and meaning of the act of incorporation, to deprive hitn and others of that right; that the subscriptions so made on the 6th of April are null and void.

The petition- concludes with a prayer- that a writ of mandamus may issue, commanding the defendants to open the books, and proceed to receive the subscription of the capital stock, according to the charter, and to show cause why the subscription thus made should not be annulled, and for such .further relief as the nature of the ease may require. '

To this action the defendants set up as a peremptory exception,- that the charter of the Louisiana State Insurance Company expired by its owii limitation, on the 1st of May, 1835; and that they were not bound to act, and cannot act after that time, under the authority given by the second section of the act to incorporate the subscribers to the Louisiana State Marine and Fire Insurance Company, approved on the 27th March, 1835, because, by the express provision of said charter, the books of said company could only be opened in the month of April, 1835, and under the superintendence of the defendants, as president - and directors of the Louisiana State Insurance Company.

• This defence, when analysed, amounts to this, as we understand it, that the defendants, as commissioners under the new corporation, are fundi officiis, because the old corpo-' ration, of which they were president and directors, had ceased to exist at the time they filed their answer ;• that being no longer president and directors, they are no longer commissioners under the new charter; and that the time for opening the books has past, and they have no longer any authority to act.

"Where the president and directors of a-company are appointed commissioners to perform a certain trust, they act in the latter capacity alone, and aye responsible for their acts as commissioners, after their offices of presidentanddi-rectors have expired.

We may assume it as an undoubted proposition, that in the present suit the defendants do not represent, in any manner, either of the two corporations. They stand before the court as individuals who were appointed by law to perforin a certain trust, and who, according to the allegations in the petition, and not denied, assumed to act in fulfilment of that trust, by giving public notice within the time specified in the charter. It is true, they were the president and directors of the Louisisiana State Insurance Company, but when they assumed to act under this appointment, they did not act in that capacity, but as commissioners to receive the subscription of the capital stock of a new company to be formed, of which the future subscribers were to be the corporators. No judgment is asked against either of those corporations, but against the persons who assumed to act as commissioners, and to compel them to proceed in the performance of their duties, according to the true intent and meaning of the act ' of the legislature. If the defendants had been appointed by name, describing them as for the time being, president and directors of a corporation about to. expire, it would not have been doubted that the trust was personal to them, and the addition of their existing quality as mere descriptis persomrum.

The second section of the act incorporating the subscribers to the Louisiana State Marine and Fire Insurance Company, provides that subscriptions for the capital stock, three thousand shares, shall be opened at New-Orleans, in the month of April next, under the superintendence of the president and directors of the Louisiana State Insurance Company, and shall continue open until the whole of said number of shares shall have been subscribed. Acts of 1835, page 59. It appears to us clear, that while acting under this appointment, the defendants Could not bind the stockholders of the company of which they were president and directors, and that the two corporations are wholly independent of each other. The fourth section provides that the subscribers to the said insurance company, their successors and assigns, are created a body politic. If there were no subscribers, there could be no corporators-and no corporation, and the commissioners were to open the books for the purpose of receiving subscriptions, and to require each subscriber to pay, at the time of subscribing, twenty dollars on each share, and secure the payment of the balance.

Where commissioners are to open books of subscription for stock of a company, on a certain day, and keep them open until the subscription isfilled, the time within which they are to keep the books open is unlimited, except as to its commencement, and the •commissioners are responsible, until the subscription is filled according' to the charter. The writ of mandamus is provided fór, in all cases where the law has assigned no relief by the ordinary means, and where reason and justice require some mode of redressing a wrong.

The latter part of the exception set up by the defendants, assumes that the time within which subscriptions could be received, was limited to the month of April, 1835, and that after that period, the commissioners could no longer open the books. The charter, as we have seen, requires that the books shall be opened in April, but it requires, at the same time, that the subscriptions shall be kept open until the whole of the number of .shares shall have been subscribed. We cannot doubt that the commissioners were authorised to act after the month of April, if they bad commenced to act within that month, and the subscription was not filled. The time within which they are authorised to keep open the sub-, scription is unlimited, except as to its commencement, which was required to be in April. If they did not cease to be commissioners when they ceased to be the president and directors of a corporation which had expired, they continued, in our opinion, to be so uutil the subscription was filled.

It will be perceived, that we confine ourselves entirely to the question of law presented by the exception, without inquiring into the merits of the controversy, and whether any, and if so, what remedy remains to the plaintiff, supposing all the facts alleged by him to be true. The writ of mandamus which is demanded in this case, is provided by the Code of Practice, in all cases “where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever.” Article 830. “ It may be directed to public officers, to compel them to fulfil any of the duties attached to their office, or which may be legally required of them.” Article 834. Whether the plaintiff be entitled to the relief sought by him, is a question which we are not now called on to decide; but we are of opinion, that there is nothing in the-exception which exempts the defendants from an inquiry into tbe manner in which they have executed the trust reposed in them, and that the court erred in sustaining it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided’and reversed; that the exception be overruled, and the case remanded for further proceedings, according to law, and that the defendants pay the costs of appeal.