26 Barb. 657 | N.Y. Sup. Ct. | 1858
The important question upon the merits, in this case, is whether the act of 1845, (Sess. Laws of 1845, p. 257,) under which this action is brought, was, before its express repeal in 1854, applicable to corporations formed under the general rail road acts of 1848 and 1850.
The corporation, of which the defendants were officers and stockholders, was created under the provisions of the general rail road act of 1848, (Sess. Laws of 1848, p. 221,) and the indebtedness, for which this action is brought, was contracted in August, 1853. The referee who tried the action held that the acts of 1848 and 1850 did not repeal, or in any respect limit the operation of the act of 1845, but that the latter act remained in full force until its express repeal in 1854, and was applicable to the corporation in question, and to the defendants as officers, agents and stockholders thereof. If the learned referee, whose opinions are certainly entitled to great respect and consideration, is right in this, the judgment is, I think, correct, and should be affirmed.
But after a careful and deliberate examination of all these statutes and of the authorities, I have come to the conclusion
It appears perfectly clear and certain, to my mind, that it became not only the duty, under the constitution of 1846, but that it was the design and intention of the legislature, in enacting the statutes of 1848 and of 1850, to prescribe the only rule which should govern, on the subject of the individual liability of corporators of corporations formed under the provisions of those acts. And that consequently, if the act of 1845 was not wholly repealed, its application and operation were, by plain and necessary implication, restricted and limited to corporations previously existing. It was in effect repealed, as to corporations formed under the general law. This will be rendered quite apparent, I think:, by reference to the provisions of the constitution of 1846, and of the two acts referred to. The constitution plainly designed to abolish the former mode, or system, of creating corporations^ and to adopt an entire new system, under which, by general and uniform rules, the individual liability of corporators, for all debts of their respective corporations, should be regulated and prescribed. Hence article 8 of the constitution provides, that “ corporations may be formed under general laws, but shall not be created by special act,” except in certain specified eases. And by section 2 of this article it is provided, that “ dues
Section 12 of the act of 1848 declares that “ all the stockholders of any such company that shall be hereafter incorporated under this act, shall be severally individually liable, to the creditors of such company,” and prescribes under what circumstances, and to what extent, they shall be so liable. In like manner section 10 of the act of 1850 confines the individual liability of the stockholder to the creditors of the company, when it attaches to “ the stockholders of any company formed under this act.” The referee in his opinion treats these acts as though they had only made stockholders liable personally to workmen and employees of the company. It will he seen, however, that the provisions "are much more extensive, and
, Again; the grants of power in the acts of 1848 and 1850, are entirely inconsistent with, and repugnant to, the act of 1845. In addition to the general powers conferred upon corporations by title 3, chapter 18 of the first part of the revised statutes, the express power is conferred upon all corporations formed under these acts, to borrow money from time to time as may be necessary, for the purpose of constructing the road and operating it afterwards, without any of the restrictions, or any of the pains and penalties, prescribed in the act of 1845. (Act of 1848, § 19, sub. 10. Act of 1850, § 28, sub. 10.) Here is a general power granted to these corporations to contract debts by borrowing money upon their obligations respectively,
Applying these general principles to the case before us, I can entertain no doubt that the act of 1845 under which this action has been brought, was never operative against the corporation of which these defendants were stockholders, and officers, and imposed no obligations upon them, personally, to the plaintiffs or their assignors. The fact that the act of 1845 was expressly repealed by the legislature, in 1854, after the debt in question was contracted, furnishes, in my judgment, no argument in favor of the plaintiff’s claim, and no evidence that such act was regarded by the legislature, even as being in force against corporations, and stockholders of corporations, under the general law. It may have been in force for some purposes as against prior corporations, and it may have been repealed expressly, for more abundant caution. Had the act of 1845 been in force against this corporation when the indebtedness in question was contracted, it is quite clear that its subsequent repeal would have formed no bar to the plaintiff’s right of action. In that case the law would have imposed the obligation to pay upon the defendants, the moment the debt was contracted. It would have become their contract, and their obligation, immediately, by force of the statute. It would have been in no sense an inchoate obligation, but a complete and perfect one, to all intents and purposes, and the repeal of the statute afterwards could not have impaired it. But as the act was of no force against the defendants, no cause of action is established against them. The judgment must therefore be reversed and a.new trial granted, with costs to abide the event.
Welles, Johnson and Smith, Justices.]