42 Cal. 201 | Cal. | 1871
This is an action of quo warranto against the defendants, claiming to compose the “ Oroville and Virginia City Bail-road Company,” in which the defendants are charged with usurping the functions of a railroad company, without having been duly and properly incorporated as such. The answer sets up the several acts which were performed by the corporators to effect an organization under the general corporation Act of this State, and avers that the statute was complied with, and the company duly organized. Judgment was entered for the defendants, and the plaintiff appeals, both from the judgment and from the order denying a motion for new trial.
Written findings were filed, which were excepted to by the plaintiff as defective; but the exceptions were overruled, to which ruling the plaintiff" excepted. This ruling is assigned as error on the appeal from the judgment; and it is further claimed that the judgment is inconsistent with the findings as they were made. The last point will be first considered.
The findings are certainly obnoxious to the objection (so
It further appears from the findings that ten per cent of the whole amount subscribed amounted to the sum of eleven thousand dollars, of which ten thousand nine hundred dollars was paid in the above named check. It is obvious that the Court intended to find as facts:
First—That the check would have been paid on presentation, whether Bolinger had funds on deposit to meet it or not.
Second—That the company received it as cash, but never presented it for payment.
Third—That when the check was drawn, Bolinger had not to his credit in bank sufficient funds to meet it.
Fourth—That the check was paid to and received by the company in good faith as cash.
Assuming these to have been the facts, the question for consideration is whether the delivery of the check was a compliance with the first section of the Act of May 20th, 1861, providing for the incorporation of railroad companies. (Stats. 1861, p. 607.)
That section requires, as a preliminary to the organization of the company, that stock to the amount of at least one thousand dollars per mile of the proposed road shall be subscribed “and ten per cent in cash so required to be subscribed shall be actually and in good faith paid to a Treasurer to be named and appointed by said subscribers from among their number.”
We are not called upon, in this case, to decide whether or not a payment of the ten per cent in good faith by checks payable in presentí, and drawn against a sufficient sum on deposit to meet them, would be a compliance with this requirement of the statute, and particularly if the checks were presented and paid within a reasonable time. That is
It is a wholly immaterial circumstance that Bolinger was in good credit, and that his check might, and probably would, have commanded the cash in the vicinity. The same would doubtless have been true of Ms own, or any promissory note by a responsible maker, or a good mortgage security, or marketable. stocks, or any other kind of property which had a current market value. But none of them would have constituted a cash payment in the sense of the statute. The policy which dictated this provision is perfectly appa
If these views be correct, the act of incorporation is invalid, and the defendants are not entitled to exercise corporate powers.
Judgment reversed and cause remanded, with an order to the .District Court to enter judgment for the plaintiff on the findings.
Mr. Justice Temple did not participate in the foregoing decision.