84 N.J.L. 310 | N.J. | 1913
The opinion of the court was delivered by
We agree with the result and the reasoning of the Supreme Court, and would add nothing but for the fact that an expression in the opinion seems to have been mis
The learned judge who spoke for the Supreme Court said that it was settled by that court upon the motion to strike out reasons that the prosecutor (now the appellant) had no right to inquire into the legality of the corporate existence of the defendant. The opinion upon the motion to strike out added that it was enough that the corporation might be such de jure and was such de ¡aclo. This was the logical result of the decision of this court in National Docks Railway Co. v. Central Railroad Co., 5 Stew. Eq. 755. It was held in that case that the Court of Chancery would not, on a motion for a preliminary injunction to restrain the National Docks Railway Company from constructing its railroad across the Central Railroad Company’s land, inquire into the de jure existence of the former company as long as it had complied with all formal requirements and was a corporation de facto. The decision was put upon the ground that there was no jurisdiction in the Court of Chancery to determine the legality of the existence of such a corporation.
The decision is not, however, authority for the broad prop-í osition that the court will never, upon proceedings to condemn land, inquire into the legality of the corporation that) seeks to condemn. We had already decided that the land-1 owner was entitled to question the right to take Ms land without his consent (State, Morris and Essex Railroad Co., v. Hudson Tunnel Railroad Co., 9 Vroom, 548), notwithstanding a contrary view expressed in the Supreme Court. 9 Id. 17. The right to inquire into the existence of the corporation de fado was conceded in the National Docks case as it was by the Supreme Court in the present case, and we in fact determined the constitutionality of the General Railroad law under which the National Docks Company had been organized. This was necessary and proper in order to determine whether it was a corporation de facto, for if there was no law under which such a corporation could exist, the attempt to
It must often happen that a determination of corporate existence de facto involves necessarily the legal right to exist. In De Camp v. Hibernia Railroad Co., 18 Vroom 43, the Supreme Court considered whether an underground railroad having one terminus on private property without any outlet in that direction, and authorized by its charter to carry freight only, was incorporated for a public purpose so that it might condemn land. In Hampton v. Clinton, 36 Id. 158, the Supreme Court held that a water company, under the act of 1876, which had not filed with its certificate the required consent in writing of the corporate authorities of the municipality, could not condemn land. In Philadelphia and Camden Ferry Co. v. Intercity Railroad Co., 44 Id. 86, the same court considered the question whether the railroad proposed was wholly underground, a circumstance which, it was argued, would prevent incorporation under the General Railroad act; the court held that the fact was otherwise, but did not suggest that the question was not one that could be considered upon certiorari in condemnation proceedings. In the Hudson Tunnel Railroad Company case we said that the landowner asked no affirmative relief, but was purely on the defensive, resisting the claim of the defendant to appropriate the land for its uses and asking the court to say whether there was any .authority to do so. Although the question involved in that
That the court, however, may inquire whether an existing corporation is or is not acting in excess of its power is well settled. Grey v. Greenville and Hudson Railroad Co., 14 Dick. Ch. Rep. 372; 15 Id. 154; 17 Id. 772; Trenton Street Railway Co. v. United New Jersey Railroad and Canal Co., 15 Id. 500; De Camp v. Hibernia Railroad Co., 18 Vroom 43; Olmsted v. Proprietors of the Morris Aqueduct, Id. 311.
Upon this point we need add nothing to what has been said by the Supreme Court upon the motion to strike out reasons. •53 Vroom 214.
The judgment is affirmed.
For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Minturn, Bogert, Yredenburgh, Congdon, JJ. 8.
For reversal — White, J. 1.