Minneapolis & St. Louis Railway Co. v. Morrison

| Minn. | Feb 2, 1877

Berry, J.¹

1. The original charter from which, and acts amendatory, the plaintiff derives its existence and powers, is found m Laws 1853, c. 10. By section 3 of that act the capital stock of the corporation created is fixed at $2,000,000. Section 5 provides that, ‘‘ so soon as said stock, or one hundred thousand dollars thereof, shall have been subscribed,” certain named'persons shall give notice of a meeting of the stockholders to choose directors. Subsequent portions of the act confer upon the directors the usual general authority to manage the business of the corporation, and, among other things, they are authorized (§ 6) to “ receive payment to the subscriptions to the capital stock at such time, in such proportion, not exceeding twenty-five per cent, at any one instalment, under such conditions, as they shall deem fit, under the penalty of forfeiture of all previous payments thereon, or otherwise.” Whatever might have been the case, in the absence of the above provision of section 5, that provision clearly authorizes the organization of the corporation upon a stock subscription of $100,000, and the subsequent provisions of the act as clearly authorize the directors, upon such organization, to proceed with the business of the corporation, and, among other things, to collect instalments of the stock. And as the authority to organize depends upon the fact that stock to the amount of $100,000 has been subscribed, the allegation in the complaint in this case, that the corporation is duly organized, involves the fact of such subscription, and is sufficient against a demurrer.

2. Defendant’s second point, in substance, is that the railroad which the plaintiff alleges that it undertook to build, and did build, is not the railroad which it was authorized to build. A reference to the map will show that the former is in fact a portion of the latter, which is sufficient. See original charter, Laws 1853, c. 10, § 16.

3. The third point made by defendant is that it does not appear that defendant ever made any legal or valid subscription to the stock of the plaintiff. .This point is based upon the fact that the complaint shows that the subscription wTas not taken under the provisions of section 4 of the charter, as amended by Sp. Laws 1869, c. 117, § 2, which authorized certain persons named to open books for subscriptions to the stock. The mode of subscription provided for in section 4, as 'amended, is provided with reference -only to subscriptions made before organization. As respects subscriptions taken after organization, like the defendant’s subsection in this case, the matter of taking them is left to the corporation, acting through its board of directors. Under this authority the defendant’s subscription is to be presumed to have been taken, upon the allegation of the complaint.

'4. Section 6 of the original charter authorizes the directors to “ receive payment to the subscriptions to the capital stock * * * in such proportion, not exceeding twenty-five per cent, at any one instalment, under such conditions, as they shall deem fit,” and makes it their duty, “ at least thirty days previous to the appointed time of such required payments,” to give notice thereof in anewspapor. This does not, as defendant contends, make it necessary that each payment required should be called for separately, or that separate notice should be given of each required payment, or that there should be an interval of thirty days between the appointed times of payment; for such is not the language of the statute. It was, therefore, competent for the directors — as they did in this case — at one time, and in one call, to require several instalments to be paid, each at a different future date, and to give one notice of all the required payments.

5. By sections 6 and 4 of the original charter the subscribers to stock are to be notified of payments required thereupon, “by giving thirty days’ notice in some newspaper printed in the territory of Minnesota, and in such other place or places as may be thought advisable.” The complaint alleges that payment of the several instalments ¡called for upon defendant’s subscription “ was duly ■demanded of said defendant, by publication of a notice for thirty days in the Minneapolis Daily Tribune,” etc. As against a demurrer, this is a sufficient allegation that the proper notice was published in a proper newspaper, and in proper time. The giving of the other notice mentioned i» left to the option of the directors.

6. Defendant’s remaining point, to wit, “ that the complaint shows that the subscription was made before the company 4iad an existence,” is a technical objection to an inaccuracy which is amply cured by the general tenor of the complaint.

Order affirmed.

1 Cornell, J., having been of counsel, did not sit in this case.