Schricker v. Ridings

65 Mo. 208 | Mo. | 1877

Hough, J.

At the June term, 1874, of the Johnson circuit court, the plaintiffs recovered judgment against the Warrensburg and Marshall Railroad Company for the sum of $5,788.96. In July of the same year an execution, issued upon said judgment, was duly returned nulla bona. Thereupon the plaintiffs, in pursuance of section thirteen of the general statutes in relation to corporations, applied to the circuit court for an execution against tile défendant, who was a stockholder in said railroad, for an amount equal to the amount of stock by him owned, together with any amount unpaid thereon. It was admitted at the hearing of the motion, that the defendant had fully paid the railroad company for all the stock subscribed for, or .owned, by him. The railroad corporation was created, and the indebtedness to the plaintiffs was incurred, after the adoption of the constitutional amendment in 1870, in relation to the liability of stockholders in private corporations. ■ Execution was issued against the defendant for an amount equal to the amount of stock owned by him, and he has brought the case here by appeal.

The only question which it will be necessary for us to consider is, whether, under the 6th section of the 8th article of the constitution of 1865, as amended in 1870, a stockholder in a private corporation can be made liable to a creditor of the corporation, when the whole amount of the stock owned by him has been paid. This section originally read as follows: “Dues from private corporations shall bo secured by such means as may be prescribed by law; but in all cases each stockholder shall be individually liable over and above the stock by him or her owned, and any amount unpaid thereon in a further sum at least equal in amount to such stock.” In 1870 it was amended so as to road as follows : “Dues from private corporations shall be secured by such means as may be prescribed by law, but in no case shall any stockholder be individually liable in any amount over and above, the amount of the stock owned by him or her.” It has been very ingeniously contended by the counsel for the plaintiff, that while the foregoing amendment was intended to extinguish all individual liability over and above the amount of stock owned, it was also intended to make the stockholder individually liable for a sum equal to the amount of the stock owned by him. Authorities construing positive provisions in the statutes and constitutions of other states, creating an individual- liability to the amount of the stock owned, have been cited to show that such liability is distinct from, and in addition to, the ordinary liability of the stockholder to have his entire stock, and any amount remaining unpaid thereon, subjected to the payment of the debts of the corporation.

The key to the true interpretation of the amendment of 1870 is to be found, we think, in the negative form of expression therein employed. If the object of the provision had been to create an individual liability to the amount of the stock owned by any shareholder, that purpose would undoubtedly have been declared in express and affirmative terms, and. not by way of mere inference from a negative and prohibitory form of expression. If the amendment of 1870 had declared in express terms that every stockholder should be individually liable to the amount of the stock owned by him, it might well be argued on the authority of the cases cited by the plaintiffs’ counsel, that as they were already liable to the 'creditors of the corporation for the full amount of their stock, paid and unpaid, the constitution intended to provide further security for such creditors by super-adding the individual liability of stockholders in a sum equal to the amount of their respective shares of stock. But such is not the nature of the provision, and the authorities cited are therefore inapplicable. The language of the amendment of 187.0 should be construed with reference to' the language of the section which it superseded, and when so considered, all doubt as to its true construction will vanish. The individual liability created by the original provision was expressed to bé a liability, to an amount named, “ over and above the stock owned, and any amount unpaid thereon.” Now the phrase “over and above the stock owned” as there used, clearly meant in addition to the stock owned. The prohibition contained in the amendment.was, “ in no case shall any stockholder be individually liable in any amount, over or above the amount of the stock owned by him or herthat is, in addition to the amount of the stock owned by him or her. In other words the identical liability which the constitution of 1865 declared should exist, the amendment of 1870 declared should no longer exist. No liability whatever was created by the amendment, but the liability created by the constitution of 1865 was, by the amendment, totally extinguished. The common law liability for the stock owned and any amount unpaid thero on remains unaffected, of course, by the amendment of 1870. The same purpose and effect now ascribed by us to this amendment have been heretofore attributed to it in the case of Ochiltree v. Iowa R. R. Contracting Co., 54 Mo. 113, which case counsel have asked us to review. Though the conclusion there reached was not controverted in argument, and was announced without any discussion of the subject, we are satisfied of its correctness, and, for the reasons here .given, shall adhere to it. The judgment of the circuit court must therefore be reversed, and the cause will be remanded.

The other judges concur, except Judge Norton, who is ■absent.

Reversed.

The following cases were reversed and remanded for the reasons given in the opinion delivered in the case of Schricker et al. v. Ridings, Hough, J., delivering the opinion in each case.

Cruce Parke and Co., v. Cockrell; same v. Funk; same v. Brown; same v. Kelley; same v. Williams; same v. Brown; Schricker et al. v. Riding & Co.; same v. Morrow; same v. Ward; Ganson et al. v. Morrow.