9 Mich. 269 | Mich. | 1861
Defendant was sued upon a subscription to tbe stock of plaintiffs, made December 18, 1855. It appears from tbe finding, that tbe company bad been previously organized, by an original subscription and filing of articles under tbe General Railroad Law, and that five commissioners were named in tbe articles to open books for further subscriptions under the statute. Tbe amount of capital stock,
“Dec. 18?7i, 1855. Schoolcraft and Three Miners Mail-road Company stock subscription. We, the undersigned, agree to take the number of shares of stock in the School-craft and Three Rivers Railroad Company, which is set opposite our names respectively, and bind ourselves, our heirs and executors, to pay for the same in monthly instalments, to the order of the president and directors of said Railroad Company, or their agent or attorney, for the purpose of constructing or building said road, whenever called upon so to do; which instalments shall not exceed twenty per cent, at any one time.
Names. Shares. Amounts.
Daniel Shuftz, 10 $250.00
Daniel Shurtz, 10 $250.00
To be paid in one year.”
The court below found the facts in writing, and made several rulings of law, which were excepted to. Judgment was given for the full amount claimed.
The General Railroad Law contemplates that, after the organization is made legal, by filing articles in proper form after payment of five per cent, upon the preliminary subscription of $1000 per mile, the commissioners named in the articles shall open books of subscription to the capital. stock from time to time, at such places and on such notice as a majority of them shall direct; and shall keep open the books until all the capital stock shall be subscribed. Provision is made for an equal distribution in case the subscriptions exceed the sum fixed. After the whole sum is subscribed and distributed, they are to call a stockholders’ meeting to choose directors. L. 1855, p. 153-4-5, §§ 1, 2, 3, 4.
Those commissioners act as a statutory board, and derive their powers from the law and not from the corporation:-— Walker v. Devereaux, 4 Paige, 229. They are expressly required to give notice of the times and places fixed by them for receiving subscriptions, and to keep their subscription books open. The design of the law was to enable all persons to subscribe upon equal terms. No one else was authorized to receive subscriptions, and they were not required to recognize or protect in their distributions any stock not subscribed for on their own lists. It follows, of necessity, that no person could by any other means obtain any assurance that he would be entitled to any share in the concern, and any subscription made without such assurance would be void for want of mutuality.
It is unnecessary to decide whether the subscriptions must be made literally in books, although such a course would be certainly much safer and les», liable to mistake and abuse. Nor is the question whether, after the books are legally opened for subscription, any portion of the
We are also of opinion that, had the case found a legal subscription, any levy of assessments was premature. The case finds expressly, that all of the stock was not subscribed. How far the act of 3 857 modifies the power to call in subscriptions till this is done,- is immaterial in this case, as all that was done here preceded the passage of that act. It i? quite common in our special charters, and in some of our general laws, to permit corporations to proceed in the exercise of all their powers before their stock is all taken. When this is allowed, there is usually an express limitation, unless it is fairly to be deduced from other plain provisions. But the General Railroad Law (at least as it existed before the amendment referred to) contains no provision from which such an intent can be deduced. It allows each company to fix its own stock, but it must not fall short of $4000 per mile for flat rail, or $8000 per mile for heavy rail (see section 1). When
Upon the finding of facts, we think the defendant below was entitled to judgment in his favor. The judgment below must be reversed with costs, and a judgment must be entered in his favor in this court. As the errors upon which we decide the cause arise upon the record, and do not impeach the finding, it is not a case for a new trial.