108 Ala. 29 | Ala. | 1895
We are unable to see how this action can' be maintained in the circuit court of Bullock county. It is a statutory proceeding, strictly, to vacate the charter of the defendant corporation, on one or more of the grounds specified in section 3167 of the Code of 1886, and was instituted, in the name of the State of Alabama, by the solicitor of the third judicial circuit of Alabama under the provisions of section 3168 of the Code, which are as follows.: “The judge of the circuit court in which the corporation is located, whenever he has reason to believe that any of these acts or omissions can be proved and it is necessary for the public good, must direct the solicitor of the circuit or county to bring such action; or such action may be brought on the information of any person giving security for the costs of the action, to be approved by the clerk of the court in which the action is brought.” Section 3169, is in the following words: ‘ ‘In what county actions to be brought. — Such actions must be brought in the circuit court of the county in which the corporation has its principal office, or, if it has no principal office, of any county in which it does business. ” Section 3167, provides that an action may be brought in the name of the State, on the information of any person, for the purpose of vacating the charter or annulling the existence of any corporation, other than municipal, whenever such corporation offends in any of the five particulars therein mentioned. Under these several provisions, the present action is brought by the solicitor, in the name of the State, as aforesaid, who avers that, “lie prosecutes herein upon the order of the judge of the circuit court for the third judicial circuit of Alabama, made in accordance with said statutes.”
Thus we see, from the authority and manner of its
In the present case, the proceeding is entirely statutory. The right of the solicitor, and the condition upon which he may sue, are described by the statute, and the same statute designates a particular and exclusive tribunal to enforce the right. The condition, we repeat is the direction of the judge of the circuit in which the,car-
It is contended that inasmuch as the third ground of forfeiture, as set forth in section 3167 Code, is that the corporation has forfeited its privileges or franchises by failure to exercise its powers, which is one of the grounds relied upon in this action, a proper construction of the statute would be that the action may be brought in the circuit court of any county in the State. It is said that this ground of forfeiture implies a total failure of the corporation to exercise its powers, as is alleged to bn the fact in the case under consideration, whereby it can have no principal office or place of business, and .cannot be said to be doing business anywhere ; wherefore, it is impossible to pursue the statutory remedy, if the condition and tribunal upon, and in which, the remedy may be pursued, as named in the statute, are to be literally
We are not prepared to say that the State is without remedy in cases like the present. The common law writ of seire facias for the dissolution of a corporation for nonuser of its franchises, instituted in the name of the State, by the attorney general, may not be excluded by the statutory remedy givnen the solicitor, or a private person. But as this'question is not directly before us, we pronounce no decision upon it. See Morawetz on Corp. § 656.
Affirmed