102 Ala. 594 | Ala. | 1893
This is a proceeding in the nature of quo warranto, to vacate the charter of the respondent corporation, under sections 3167 et seq. of the Code of 1886. It has its basis mainly in subdivision 5 of section 3167, which authorizes judgment of forfeiture when a corporation “ exercises a franchise or privilege not conferred on it bylaw.” The statute prescribes two methods of procedure to enforce these forfeitures. One is that the j udge of the circuit, wherein the corporation is- located, whenever he has reason to believe any of the specified acts or omissions can be proved, and it is necessary for tlie public good, must direct the solicitor to bring the action. When so done the proceeding is alone in the behalf of the State for the public good. The other is, that the action may be brought on the information of any person giving security for the costs, to be approved by the clerk of the court; in which case the informant must be joined as plaintiff with the State. If the informant dies pending suit, another, giving security for costs, may be substituted in his place ; but if no person is so substituted the action abates. The present proceeding is of the latter class, except that the requirement
The respondent corporation was chartered by special act of the General Assembly, in the year 1853, by the name of The Montgomery Gas Light Company, with the city of Montgomery, Alabama, as its place of business, and was empowered to furnish that city and its inhabitants gas for illuminating purposes, which was the sole object and end of the incorporation. The business of the company was legitimately carried on, within corporate powers, until the year 1889, when the grievances complained of in the information began. On December 12th, 1888, the General Assembly of Alabama passed an act, “To authorize corporations organized under the general incorporation laws of the State, or which have been chartered by an act of the General Assembly prior to the enactment of the general incorporation laws of this State of 1867, to alter and amend their charter;” and, in this act, it is provided that not less than three-fourths in number of the stockholders of any such corporation, holding not less than two-thirds in value of the stock thereof, may, in specified cases, file in the office of the judge of probate of the county in which the corporation has its principal place of business, a verified declaration, in writing, signed by them, setting forth, 1st. When said corporation was organized, its name, what changes, if any, are desired to be made in such name, and the amount of its capital stock which has been subscribed for and taken. 2d. The names of the stockholders signing the same-, and the amount of stock held by each. 3d. The purposes of the corporation and the nature of its business, as the same is set forth in the original declaration, and the alterations or amendments thereof desired. 4th. The amount of the capital stock as shown by said original declaration, and the amount to which it is proposed to decrease such capital stock, if a decrease is proposed. There is a proviso limiting, to some extent, the powers to be derived by such alterations, not material to the present case. — Acts, 1888-89, p. 20. Proceeding strictly under and in accordance with this act, assuming its validity, the respondent, in 1889, in the probate court of Montgomery county, changed its name' from “The
We observe first, that section 5 of Art. XIV can exert no influence upon this controversy, for, if we go to the verge of holding that, under that section, necessarily implied corporate power can not exist, and that every corporate act must find its authorization in express terms in the charter, the acts now complained of are expressly authorized in respondent’s charter, if the alterations and amendments above noticed can be otherwise upheld as valid.
Next, we find, in section 3 of Art. XIV, express recognition of the right of the General Assembly to alter or amend the charter of an existing corporation, or to pass
What we have said applies with greater force, if possible, to that feature of appellant’s contention resting upon the “contract” clauses of the Federal and State constitutions. As we said, in considering the other constitutional objections, it is a mistake to say that the act in question is unconstitutional and void per se, because its terms appear to be such as, if enforced, might impair the obligation of the contract between the State and respondent’s shareholders, for the reason, as we have said, that it is competent for the shareholders to waive the protection of the constitution, and by their assent to, or acceptance of, the provisions of the act, render it valid, though otherwise it would be invalid; and it is always open to inquiry in a case like this, involving, so far as contractual obligations are concerned, merely the private rights of individuals, whether there has been such assent or acceptance. — Cooley Con. Lim., marg. p. 181; M. & O. R. R. Co. v. State, 29 Ala. 573 (586); 3 Amer. & Eng. Encyc. of Law, 744, note 1. And the assent of a corporation may be inferred from such acts or omissions as would raise a similar presumption in the case of natural persons. — 3 Amer. & Eng. Encyc. of Law, supra, and cases cited in note. These contract clauses are intended alone for the protection of the private rights
Affirmed.