51 Kan. 462 | Kan. | 1893
The opinion of the court was delivered by
This proceeding challenges the corporate existence of the Union Terminal Railroad Company, and the right of the defendants to exercise the privileges, powers and franchises of a railroad corporation, and especially the power of eminent domain. The defendants organized, and obtained a charter, and are assuming to possess the privileges and powers of a legally-incorporated railroad company. It is contended that there is no express authority for the incorporation of circular or belt railroads, or spurs or short lines by which one railroad may be connected with another, and that, from the statements contained in the charter of the defendant company, it is apparent that it cannot be incorporated as a railroad company under the laws of this state upon which the power of eminent domain can be conferred. In § 4 of the act concerning private corporations, it is provided that they may be created by the voluntary association of five or more persons, for the purposes and in the manner mentioned in the following sections of the article: In § 5, the purposes for which corporations may be formed are stated, and, among others, provision is made for “the construction and maintenance of a railway and a telegraph line in connection therewith,” and also for “the construction and maintenance of a street railway.” In § 6, it is provided that “a charter must be prepared setting forth: First, the name of the corporation; second, the purposes for which it is formed; third, the place or places where its business is to be transacted; fourth, the term for which it is to exist; fifth, the number of its directors or trustees, and the names and residences of those
Neither is the alleged purpose of the defendant company to
The State, ex rel., v. Beck, 81 Ind. 500, was a proceeding in quo warranto, where á question arose as to whether the railroad company had obtained the charter in good faith and with the intention of carrying out the rights and privileges granted to the corporation, but the court held that the question of prospective misuser, and whether the incorporators intended in good faith to carry out the objects of their organization, cannot be inquired into in quo warranto proceedings. The same question was before the supreme court of Pennsylvania, which held that
“No mere intention or purpose in a corporation to violate its duty can constitute a cause of forfeiture. . . . The design, clearly evinced, to do an unlawful act may justify the interposition of a court of equity by a process of injunction, but it would be unjust, before the act was consummated, to visit the' corporate body itself with the extreme penalty of civil death and confiscation.” (Commonwealth v. Railroad Co., 58 Pa. St. 26.)
These authorities sufficiently show that nothing can be built upon the allegations that the company intends to ignore or neglect some of the duties which it owes to the public. It cannot, if it would, rid itself of any public duty, and if an attempt was made there is no lack of power in the state to compel performance.
We conclude that the petition fails to state a cause of action, and that defendant’s demurrer should be sustained. This will be the judgment of the court.