132 Ala. 50 | Ala. | 1902
— This is an information in the nature of a quo warranto filed under section 3417, et seq. of
As last amended the demurrer was sustained, and the plaintiff declining to amend further, the petition was dismissed. This action of the court is now assigned as error.
The first count of the petition as last amended, after stating the age and residence of the relator and the date of the formation of the corporation, with reference to the general statutes under which it was formed, charges, generally, that the corporation “carries on its business in said city and operates and enjoys said franchises; and abuses and non-performs the duties granted and assumed by said corporation under said franchise,” etc. If grounds o'f forfeiture of a charter may be stated thus generally there was no necessity of any attempt a¡t any further or more particular statements in the later counts, for this was certainly broad enough to cover any and every dereliction of duty and abuse of franchises. From ¡the very nature of the proceeding—one involving the life
In the second count, the complaint is, that the corporation has enacted a by-law which contravenes the provisions of section 1135 of the Code. It is alleged in substance', that under the by-law, '¡the company may hold ¡the borrowing member, after default and when it forecloses the mortgage he has given, still bound for premiums, interest, fines and dues and fail to give him credit for payments madé as required by said section. Of what member this particular exaction was ever made or whether of all members in default, there is no averment. It is, rather, a statement of the general policy of the company, and of its assumption of a right to proceed in a manner violative of the statute, than of any actual, specific statement of such violation. It is quite clear that the facts are not stated with the precision required under general rules of pleading, to sav nothing of the strictness required in procedings of this character.
It is charged in the third count, that the corporation has been guilty of a violation of section 1136 of the Code, in that in its “January,' 1900, edition of its by-laws,” it failed to set forth “a definite withdrawal value of all shares of stock in said corporation upon which all dues and charges for one year or more have been paid, at not less than eight per cent per annum thereon for the average time such dues have been paid, less fines and penalties and a proportionate share of losses and expenses sustained.” It is not seen why these facts should, under the 'statute, have been made to appear in its “January, 1900, edition of its by-laws.” Time, it is averred the corporation was acting under “the by-laws above referred to,” but still no penalty was incurred for a failure to include the stated facts in any edition of those bylaws. Moreover, it was not the duty of the corporation to include a statement of all the facts postulated in the count, in its by-laws. The pleader complains that certain facts were not so included, which are mentioned in the
The fourth and last of the counts is equally faulty in its failure to allege specific facts as distinguished from a general state or condition of corporate affairs or general plan of conducting its business. It attempts to draw a distinction between the treatment accorded by the corporation to investors in its stock and to borrowers — stating the general policy alleged to have been pursued by the company in the way of discrimination, but giving no instances in which that policy has been put into actual operation. It assumes, moreover, a knowledge by the court of many things which the court cannot judicially know. Was there, in fact, an issue of investment stock differing from ordinary stock? In what respect did it. so differ? What were its peculiar incidents upon which the corporation predicated the light or assumed right to prefer them in the manner stated? These and other things necessary to an adjudication of the question whether the preference was or was not justified, cannot be known ito the court unless alleged in the pleadings.
But there is another proposition upon which the action of the court in sustaining the demurrers must be affirmed, without reference to the form of the pleadings. While an information in the nature of a quo warranto is generally recognized as the appropriate proceeding of testing the right to exercise corporate functions and as the proper corrective for misuses or non-user or abuse, of corporate franchises, it is not for the commission of
It is scarcely necessary, in conclusion, to say that we intimate no opinion upon the propriety or otherwise of the corporate acts attempted to be complained of or as to the forum in which these questions may be tried. It is sufficient for this case, that the remedy does not lie in a forfeiture of the charter.
Affirmed.