State ex rel. City of Vicksburg v. Washington Steam Fire Co. No. 3

| Miss. | Nov 15, 1898

Terral, J.,

delivered the opinion of the court.

The demurrer of the defendant to the replication of the state should have been extended back to toe special pleas of the defendant, for these pleas, we think, present no defense to the information. Section 3520, code 1892, provides that the remedy by information lies whenever a corporation shall cease to discharge the duty for which it was created. It is insisted that the defendant company has not forfeited its charter, because it has not been guilty of any wilful wrong or neglect.

It would seem that moneyed corporations do not forfeit their charters unless for positive wrong or wilful neglect, but municipal corporations and corporations constituted to aid them in the discharge of their public political functions stand upon a different footing. These latter corporations exist by grace only, and not by contract, and, when they cease their functions, they become extinct, if such be the declared legislative will.

Washington Steam Fire Company No. 3 was brought into existence as an agency of the city in the operation of the fire department; its franchise is apart of the public political powers of the city; it acquired its property under the express stipulation that it should belong to the city when it ceased to perform its duties, and, doubtless, its property was acquired through a stream of beneficence which flowed in that channel, because it was known that the public were the real beneficiaries.

The defendant company took its charter well knowing that it was a mere agent of the city in the operation of the fire department, and that the city could, at its pleasure and discretion, dispense with the services of the fire company.

Bad faith cannot be imputed to the city, for the courts will not try such a question. It must be assumed that the municipal authorities are acting in good faith, and are striving to effect the best results for the city. In 1870 they accepted the aid of the defendants as a volunteer fire company; in 1889 they chose to operate the fire department under a different system, which makes it necessary for the defendant company to stand aside, and to give the authorities liberty to work unhindered by its presence. That the defendant company acquitted itself honorably in the past is not a plea for its further existence as against the will of the city.

When in section five of the defendant’s charter, which provides that said company shall be subject to the ordinances of the city of Vicksburg regulating its fire department, and that, when said company should cease to exist (as, by ceasing to perform the duty for which it was created), all its property shall belong to said city, the legislature thereby, in effect, declared a forfeiture of the defendant’s charter when the ordinances of the city made it impossible for the defendant company to perform its duties as a volunteer fire company of said city, and the judgment of the court, if it be found that said company has ceased to exist, is merely a declaration of the legislative will. The demurrer of the defendant company to the replication of the. state is extended back and attached to the three special pleas of the defendant company, and, as to said pleas, said demurrer is sustained.

Judgment below is reversed, and case is remanded for a new trial.