State v. Hancock

18 Del. 252 | Del. Super. Ct. | 1899

Lore, C. J.:

The main question raised by this demurrer, is whether the “ Delaware Electric Railway Co.,” was organized and created in violation of Section 1, Article 9, of the Constitution, promulgated June 10, 1897; which provides that, “ No corporation shall hereafter be created, renewed or revived, by special act, but only by or under general law.”

It is conceded that the Delaware Electric Railway Company, was formed by the union of the Dover and Milford Eailway Company, and the Dover and Bay Shore Eailway Company, under the terms of their special acts of incorporation; which acts were passed before June 10, 1897, and were in force at that date; but that all of the said corporations have been organized since that date.

Was such organization within the inhibition of the Constitution ?

This question was raised in the former argument in this case, and has been quite fully discussed in the argument just closed. After such examination and thought as we have been enabled to give to this subject in the short intervening time, we have reached the conclusion that such organization and creation is not within the constitutional inhibition.

Neither the reasoning nor the conclusions in the case of the State vs. Dawson, 16 Ind., 40, commend themselves to our judgment. The case bears upon its face, evidence of an effort to meet, what the Court designates as “ the policy that induced the prohibition.” What that policy may have been does not appear.

The reasoning in the case of the State vs. Roosa, 11 Ohio, 16, which seems to differ from the Indiana case but little in principle but somewhat in the language of the respective constitutions, is much more satisfactory.

To adopt the construction of our Constitution asked for by the State would be to annul every living charter upon our statute books, which had been passed June 10, 1897, but under which no corporation had been had at that time; and that too by implication, in the absence of any express language to that effect.

Such a construction, again, is met by the well settled legal principle, that retroactive effect will never be given to any law unless such intent be clearly expressed. This doctrine has been again and again announced in our own courts. Such construction will not be given, in the language of 5 Hill, 221, “Unless in the latest act is plainly indicated an intention to abrogate it.”

Again, “ If the acts may well subsist together, the prior act is not repealed.” Is it in anywise shown to the satisfaction of the Court in this case, that these prior charters with all their privileges, “may not well subsist” with the provisions of Section 1, Article 9 of the Constitution. We think not.

For these and other reasons which we deem not necessary to specify, we conclude that the organization and creation of this company, as disclosed upon the plea in this case, is not within the inhibition of the Constitution.

We have heretofore passed upon the power and authority of these two corporations to merge; and see no reason to reverse our ruling on that point.

The demurrer is therefore overruled.

The counsel for the State filed replications to defendant’s pleas.

The defendants thereupon joined issue and the further hearing of the case was postponed on the application of the State until December 18th, on the ground of the absence of a material witness for the State. Mr. Hilles, on behalf of the defendants, on the above mentioned date asked leave to amend his pleas by inserting in place of the word “ first ” (being the last word of the fourteenth line on page 3 thereof) the word “ fourthso that that part of the plea would allege that 100 shares of the capital stock of the Dover and Milford Railway Company had been subscribed and ten thousand dollars had been paid in cash “ on or before the first day of November, A. D. 1897.”

Counsel for the State opposed the amendment at this stage of the proceedings and claimed that if allowed it should be on terms

Lore, C. J.:—We will allow the amendment and without terms. Wherever the date the “ first ” of November appears let it be changed to “ fourth ” of November, in both the pleas and the replications.

How will you have the issues tried ?

Mr. Hilles:—We would like to have a jury.

Lore, C. J.:—At the request of counsel for the respondent it is ordered by the Court that the issues of fact raised by the pleadings in this case be tried by a jury at the bar of this county.

Mr. Hilles:—The burden being upon us, as I understand, to show the corporation, I take it we should open and close to the jury.

Lore, C. J.:—You justify under a charter. The burden is upon you.

During the progress of the trial the following questions were objected to and ruled upon :

Mr. Hilles asked the witness John D. Hawkins, whether any money was paid in his presence at the meeting of the commissioners held in the witness’ office on June 1, 1897, as subscription to the capital stock of the Dover and Milford Railway Company, and if so, how much.—Objected to by counsel for the State on the ground that the commissioners themselves are the ones who should be called to prove that fact.

Lore, C. J.:—We think this is admissible.

A. Yes sir, there were at that meeting two subscribers to the capital stock. One was Joseph Raspin and the other was myself. The other company having failed of its purpose on account of there being no payment on its capital stock, I prepared myself that day before the meeting to pay it in.

Q. What did you do in pursuance of that preparation ?

Objected to by counsel for the State on the ground that if there is a book kept, the book is the best evidence of the payment of money, and the testimony sought to be introduced would be but secondary evidence.

Lobe, C. J.:—The production of books is one mode of proving it; this is another.

A. It was either ten thousand dollars or ten thousand five hundred dollars.

Q,. On the bottom of the loose page which is in evidence, I notice a pencil memorandam,—in whose handwriting is that memorandum ?

A. That is in my handwriting.

Q. When was that made ?

A. On the afternoon of the day of the meeting of the commissioners—sometimes here called incorporators.

Q. What number of shares of stock of the Dover and Milford Railway Company had been subscribed for as appears on that subscription list ?

Objected to by counsel for State as not the best evidence; that the books admitted in evidence show the amount of the subscription to be one hundred shares and the defendants are seeking to vary that by paroi testimony.—Cook on Corporations, Vol. 1, Sec. 65.

Lobe, C. J.:—We understand that the defendants propose now to show by paroi testimony an additional subscription necessary to cover the $10,000 required by the act to be paid in before organization.

Mr. Hilhs:—We propose to prove that there was a mistake in putting down the subscription for one hundred shares of stock,

when as a matter of fact two hundred shares of stock were subscribed and paid for.

Lobe, C. J.:—We understand the proposition of the defendant is to prove by paroi evidence that there were enough shares of stock subscribed to cover this ten thousand dollar payment.

You will notice that the first section of the act of 1895 provides for a suitable book for the subscriptions to the capital stock of the Dover and Milford Railway Company. That necessarily contemplates that those subscriptions shall be in a book provided for that purpose and of necessity the subscriptions must be in writing. In Section 2 of the act renewing the charter is this language : “ that before any organization shall be effected as provided by the second section of the original act” (that is, the act of 1895), “at least $10,000 of the capital stock subscriptions therein authorized shall be fully paid in cash.”

Our judgment is that this $10,000 must be paid upon subscriptions of the capital stock therein authorized and that these subscriptions must be made in the manner prescribed by the charter, in a subscription book for that purpose. You have produced here the subscription book, or what purports to be the same, and it shows upon its face signed by the parties who made them, subscriptions for 100 shares which at the par value of $50 per share would amount to $5000. You seek to vary that and establish by paroi that that is a mistake.

That is open to two objections: It is attempting to prove a part of the subscriptions to the capital stock of this corporation by paroi, when the charter prescribes that it shall be subscribed in a book for that purpose. The second objection is that you are seeking to vary written statements over the signatures of these respective parties by paroi testimony. We do not think it is permissible. There must be in writing upon the book (or something equivalent to it) sufficient to have enabled the defendants to have paid on those subscriptions ten thousand dollars prior to the organization. We do not mean any particular book but it must be in writing,—something coming within the provisions of the charter.

Counsel for defendants thereupon stated that as it would be useless, under the ruling of the Court, to put in the remainder of their testimony, they would press the case no further.

Edward Ridgely:—I now move the Court to instruct the jury to bring in a verdict for the State.

Lobe, C. J.:—Gentlemen of the jury: Under the rulings of the Court and statements made by counsel for the respondents in this case, we instruct you that you are to return your verdict for the State of Delaware, at the relation of the Attorney-General in this case. You can only render a verdict for nominal damages.

Verdict for the State for six cents and costs.

Whereupon the Court rendered the following judgment:

“And now to wit, this eighteenth day of December, A. D., 1899, thirty jurors having been by the sheriff of Kent County duly summoned, returned and empaneled, out of which number a jury, to wit,” (names of jurors here follow) “ being duly drawn and after all cause of challenge allowed, did appear at the bar and being duly sworn and affirmed to well and truly try the issues joined and a true verdict give according to the evidence, and upon their oaths and affirmations, respectively, do say that they find for the State of Delaware, on the relation of Robert C. White, Attorney-General and assess the damages at six (6) cents, costs, besides, etc.

“ Whereupon all and singular the premises being seen and fully understood by the Court here it is considered and adjudged by the said Court here that the said ” (naming the defendants) “ do not in any manner intermeddle with or concern themselves with, in or about the liberties, privileges, rights, powers or franchises aforesaid, that is to say, as officers, directors or stockholders of ‘ Delaware Electric Railway Company/ but that they and each of them be absolutely ousted, forejudged and excluded from ever exercising or using the same or any of them for the future; and that they the said ” (naming the defendants) “ in order to satisfy the said State for and on account of the usurpation aforesaid be taken, etc.; and that the said State of Delaware, do recover against the said Joseph Hancock, Franklin Temple, W. W. Power, Henry Reichart, E. C. Hancock, John D. Hawkins, Howard M. Wilkinson, Lucius P. Campbell, Theodore Townsend, the sum of six cents damages and -dollars for its costs, by it laid out and expended in carrying on its suit in this behalf, and that it, the said State of Delaware, have execution of this judgment.

“Chas. B. Lobe, C. J.”