Taggart v. Western Maryland Rail Road

| Md. | May 12, 1866

Lead Opinion

Bowie, C. J.,

delivered the opinion of this Court.

The General Assembly, at January session, 1852, incorporated “The Baltimore, Carroll and Frederick Rail Road Company,” with a danse prescribing certain preliminaries usually observed in opening the hooks and taking subscriptions for stock, prior to the organization of a company, among others, the pre-payment of one dollar per share on every share subscribed; also requiring the road therein contemplated, to he commenced within three years and finished within ten years from- the passage of the Act, otherwise the same should he null and void. Books were opened by the Commissioners, the requisite number of shares subscribed, a Board of Directors and a President were elected, and the company fully organized.

After this organization, the appellant on the 28th April, 1853, subscribed for ten shares, in one of the subscription hooks, held by a Mr. Johnson, upon the terms and conditions prescribed therein and the charter, with this condition annexed : “provided the said contemplated road should he built on the then present track of the then existing branch to ‘Green Spring,' of the Baltimore and Susquehanna Rail Road ;” hut did not pay the sum of one dollar per share, required by the charter to be paid to the commissioners, at the time of subscribing.

The name of the corporation was subsequently changed by Act of Assembly, to that of “The Western Maryland Rail Road Company.” The defendant's subscription, with others, was returned to the stockholders, and classified among the conditional subscriptions. The construction of the road not having been commenced within the time prescribed by the original charter, the Act of 1856, ch. 289, was passed, waiving all claims of forfeiture, by reason of the company’s failure to comply with any of the provisions of the Act of incorporation, anfi allowing six years for the commencement, and twelve years from the passage of the Act, for the completion of the road.

The “Green Spring” branch of the Baltimore & Susquehanna Rail Road was adopted by the appellee on the 31st of March, 1857, and the road put under contract for construction. No calls were made for payment of subscriptions until the 25th of June, 1857. The appellee never indicated, affirmatively, any intention of abandoning the work of the appellant; never affirmatively withdrew his subscription, or attended any meeting of the stockholders or subscribers to the stock.

Several calls for instalments having been made and refused, this action was brought on the 1st of February, 1861. The prayers offered by the plaintiff, (now appellee,) and granted by the Court, present three negative propositions :

1st. That the change in the corporate name of the appellee by the Act of 1853, ch. 37, is not a bar to the present action.

2d. That upon the finding of the facts therein before specified, the non-payment of one dollar per share by the defendant, at the time of his supposed subscription", is not of itself a bar to the present action.

3d. That the failure to commence the work within three years from the Act of incorporation, (1852, ch. 304,) the Act of 1856, ch. 289, being duly passed and accepted by the stockholders of the plaintiff, is not a bar to this suit.

. The first proposition is admitted, but the second and third propositions are specially denied by the prayers of the defendant, which were rejected by the Court, and constitute the ground of this appeal.

The first and third prayers of the appellant are the converse of the appellee’s second ; the appellant’s second prayer, of the appellee’s third.

The learned counsel differ as to the range of the first and third prayers. The appellee contends, they present only the question of the effect of the non-payment of the cash instalment of one dollar at the time of subscribing ; on the other hand, it is insisted they embrace the conditional character of the subscription, and the validity of such. It is observable that these prayers refer specifically to the subscription, in the following terms: “and that the defendant made the subscription offered in evidence by the plaintiff',” etc., as one of the facts upon which the proposition of the defendant was based. This specific reference in each of the prayers under consideration, was not merely introductory to the other facts connected with it, but called for an examination of the subscription itself, its qharacter and conditions.

The subscription of the appellant is not set out in terms in the bill of exceptions, but referred to as a conditional subscription. In the nar and appellee’s brief, it is set out “ in iotidem verbis,” as therein before cited.

Assuming that the evidence, offered by the plaintiff (and refused to the defendant in his prayer,) corresponded with the subscription set out in the nar, the legal sufficiency of such subscription, was necessarily brought before the Court, by the first and third prayers of the defendant, whether the right of action depended on the prepayment of the deposit, or the conditional character of the subscription itself. The supposed contract being in writing, its validity was a question for the Court, and however the latter view may have been overlooked in the discussion of the former, it seems necessarily involved in the disposal of these prayers.

The first point presented by the prayers arises under the 3rd section of the Act of 1852, ch. 304, incorporating the appellee, which directs that “upon every subscription, there shall be paid at the time of subscribing, to the company or their agents, appointed to receive such subscription, the sum of one dollar on every share subscribed.” As there are other cases involving the construction of this section, we are requested to interpret it, not only as it may operate upon the facts in this case, but upon subscriptions made to commissioners or their agents, prior to the organization of the company. It is contended that this clause applies peculiarly and solely to the latter class of subscriptions, as to which, it is only directory and not indispensable. The class of cases maintaining the contrary, it is insisted, originated in the decision of the case of Jenkins vs. The Union Turnpike Company, by the Court of Errors in New York, 1 Carr’s Cases in Error, 86, which was contrary to the better opinion (as it said) of the Supreme Court ot New York, and make only a “ suite d’erreurs.” The defect or vice of the original decision is not pointed out, but it is impeached as emanating from a Court, constituted of laymen, as well as lawyers, and of less authority than the tribunal whose decision it reviewed and reversed. A decision not universally adopted, but questioned, doubted and overruled. We are invoked not to follow such precedents, upon a mere comparison of facts, but to apply the judicial mind to a consideration of the principles of law applicable to them. With this earnest exhortation in view, we have examined the series of cases referred to, and will concisely state the result.

The controlling principle, on which those cases are founded is, that all charters or Acts under which highways are erected, and franchise and privileges conferred, are deputations of public power or authority to be strictly construed. The subscription for stock must be founded on a valid consideration, and constitute a contract binding on both parties ‘‘ eo instanti. ’’ The promise of the subscriber being based on the promise or expectation of becoming a stockholder, if the-right to the stock is not consummated by payment of the deposit, the obligation to pay the subscription is not binding.

Chancellor Lansing, treating the Act, under which the subscription was made in that case as a public law, the provisions of which he must notice officially whether pleaded or not, thus defines the duties of the commissioners : From the record it appears, that commissioners were appointed by the statute, to perform certain duties particularly described. They were to receive subscriptions and to receive for the benefit of the defendants (in error) $10 on each share of the stock of their company. The plaintiff (in error) subscribed, hut it does not appear that he paid. At the time these steps were taken, the corporation described in the Act, was not in existence. It was incapable of contracting. The acts to he performed by the commissioners were merely preparatory to its creation. To give effect to their acts, their power must be strictly pursued. * * They were directed to exact from the persons who were to he admitted members of the corporation, both subscription and payment, as a condition precedent to their admission. If they omitted either to subscribe or to pay, they did not come within the terms of admission. 1 Caine’s Cases in Error, 94.

Tilghman, C. J., in the case of The Hibernia Turnpike Company vs. Henderson, 8 Serg. & Rawle, (which was a subscription to commissioners before the organization of the corporation,) enlarged upon the principles of public policy, which required a rigid adherence to the letter of the law, and strict compliance with the requisition of prepayment, in all subscriptions made to commissioners. " If (he says) persons are permitted to subscribe without the previous payment of iivo dollars a share, large subscriptions may he made, which would not otherwise have been made, by those who are anxious to give a direction to the road, which may benefit themselves, at the expense of the public. The case is reduced to this simple question : Can a contract he enforced in a Court of Justice, which was made in violation of an Act of Assembly. It is not the first time the question has been asked in this Court, and it has received but one answer : " It cannot he enforced.” lie refers to the decision of the Court of Errors in New York, 1 Caine’s Cases in Error, as settling the law in that State.

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Concurrence Opinion

Gibson, J.,

concurred, replying to the argument (which has been urged in this case,) that prepayment was a condition which might be waived, it being intended only for the benefit of the corporation. He asks, “ What was the consideration for the charter? Undoubtedly, the benefit which was expected to result to the public ; not the profit that might be made by the stockholders. The State, therefore, was a party, and had an interest in preventing the scheme from being turned into a bubble, etc., vide p. 225. The design of the deposit was to prevent the subscription list from being filled with the names of nominal stockholders and the creatures of others.” 226. * * *

Every contract, where the consideration is promise for promise, must be obligatory on both parties or both will be at liberty to recede — the promise which is the consideration of that on which the action is brought, must be such as the plaintiff had power to perform. I do not say there was an express promise here that the defendant should enjoy the rights and privileges of a corporator ; but certainly that was understood as being the consideration on which he subscribed. But the company could introduce no one as a member in any other way than that pointed out by the Act of incorporation, p. 227 ; if they could, it would be requisite that the defendant’s title should have been good when he subscribed; otherwise the contract would be without mutuality, and if he acquired no right which he could enforce against the will of the plaintiffs, he incurred no responsibility, 228.

In Crooke vs. Crane, 21 Wend., the question being whether the commissioners, appointed to open books to receive subscriptions, were authorized to receive checks of subscribers in payment of the sum required to be paid at the time of subscription.

Cowen, J., said : “I am, therefore, strongly inclined to the opinion that the check in question was void, as contrary to the policy of the statute. Nor can there be any doubt, I imagine, that tho contemplated corporation, if í am right as to the facts, failed of going into existence for want of the proper payments as a condition precedent. Such is the doctrine laid down by Chancellor Lansing in Jenkins vs. Union Turnpike Company, 1 Caine’s Cases in Error, 934, and recognised by this Court in Goshen Turnpike Company vs. Horton, 9 Johns. Rep., 217, and Highland Turnpike Company vs. McKean, 11 Johns. Rep., 98. Dutchess Colton Manuf’y. vs. Davis, 14 Johns. Rep., 238.

These cases go further, each subscriber must pay as a condition to his own liability attaching. Payment was a requisite which the commissioners could' not waive. Starr vs. Scott, 8 Conn. Rep., 483.

The case in 21 Vt. Rep., cited by the appellee, to the contrary, has several peculiar features which distinguish it from the class of cases requiring prepayment of the deposit, as essential to tho contract. The defendant, in that case, was one of the original associators, and had signed an instrument prior to tho Act of incorporation, by which tho subscribers agreed to take, and did take the number of shares affixed to their respective names. Tho defendant subscribed for fifty shares of the stock. The note in question was given for tho first five dollars payable on each respective share, which was received in settlement of the first instalment; by the subscription paper it appears there were several subscribers for stock prior to the defendant, and by the Act of incorporation each subscriber per se became a corporator.

These facts were deemed sufficient to show the corporation was ‘‘ in esse at the time of taking the note, and capable of taking the promise through their agents, the commissioners.” Upon all these peculiar circumstances, it was held the action on the note was maintainable.

The learned Judge delivering the opinion of the Court, though questioning whether the opinion of the Supreme Court or Court of Errors, in the case in 1 Caine’s Cases in Error, was the better opinion, distinguishes that case from the one under his consideration.

The case in 16 B. Monroe, 5, declaring prepayment of the deposit to the commissioners, is not essential to the validity of the subscription, presents the anomaly of a decision founded on a case previously and notoriously reversed, without apparent knowlege of the reversal. The Judge in delivering the opinion says: “ The decision of the Court in the case of The Union Turnpike Company vs. Jenkins, 1 Caine’s Rep., sustains the views expressed in this opinion ; and it is only the opinion of the dissenting Judge that is'cited in Angell & Ames on Corporations, and referred to by the counsel for the appellants." He seems wholly unaware that the opinion of the dissenting Judge had been affirmed by the Court of Errors, and that of the majority of the Supreme Court on which he relied, overruled.

The 20th Ill., 656, deciding in the same way, relies only on 16 B. Monroe, 5, and 21 Vt. Rep., 30, which we have before shown, was marked by very peculiar features, distinguishing it from the Union Turnpike Co. vs. Jenkins, and therefore not in point.

The case in 17th Ohio, 191, cited to the same point by the appellee, is a mere dictum, sustained by neither authority or reason.

It would appear from this comparison of the cases cited, that Jenkins vs. The Union Turnpike Company, 1 Caine’s Cases in Error, has not been overruled, or abandoned in principle in succeeding cases within the same category ; but it has been questioned, criticised and departed from, where the facts would warrant a departure.

ít is still recognized as a leading cáse, not only in the State of New York, but in several other States, with such weight of authority and reason as commands our respect in similar cases.

If not expressly adopted in this State, it has been referred to in terms which recognized the principles on which it was decided as properly applied under the circumstances.

In the case of Elysville Manufacturing Co. vs. Okisko Company, it was objected that the appellant had no power under its charter to subscribe to the stock of the appellee, and if it had, the one before the Court was not binding, because at the time of the subscription, the cash payment was not made. In support of the latter proposition the case in 1 Caine’s Rep., 381, was relied on. This Court said that case is clearly distinguishable from the one béfore us. There, no payment was made either at the time of subscription or thereafter by the person whom it was attempted to make responsible on his subscription, while here the whole amount of the subscription was paid ; in other words it is a completely executed contract. In the case referred to, the Court evidently founded their decision on the want of mutuality. " The subscriber not having paid in conformity with the authorized terms of subscription, could not have compelled the transfer of the stock to himself, he not having in any way, in part or in whole, performed the contract.” 5 Md. Rep., 158.

The preponderance of authority in favor of a strict compliance with the provisions of the charter, in cases of subscription, prior to the organization of the company, is such as is not to be disregarded. This Court has said, "there is no doubt that in general, a strict compliance must be shown with the provisions of the charter, but in some cases a compliance will be presumed and in others it may be waived.” 16 Md. Rep., 444. The distinctions between subscriptions prior and subsequent to organization, is clearly recognized in 9 Md. Rep., 568, in this language:

‘‘ Commissioners are appointed to receive subscriptions to stock for the purpose of giving the subscribers a right to organize as a corporation under the charter. So soon, however, as the organization takes place, the authority of the commissioners ceases ; and all corporate powers conferred by the charter, vest, in the body politic. Such, at least, is the general rule, applying in every case where there is no special provision to the contrary. It was further held, that in that case, there were no provisions requiring the corporation after organization, to have subscriptions taken by commissioners and in no other mode.”

Hence in this case the corporation being organized by the subscription of the necessary proportion of the stock, and election of officers, succeeded to the power previously vested in the commissioners, to sell and dispose of the remaining shares, without regard to the conditions imposed on them. The act of the agent taking the subscription, being recognized by the corporation by receiving and registering the subscription, among the conditional subscriptions, was equivalent to a previous appointment of the agent for that purpose.

The objection that the subscription was void because conditional and contrary to public policy, is strongly supported by the authority cited by the appellant. 1 Hill, 518. 18 Barbour, 318. But these cases turn upon the provisions of the local statutes, and the subscriptions were made to commissioners prior to the formation of the companies, for the most part.

The first ground upon which the validity of conditional subscriptions has been impeached in the cases before cited, viz: that a contract to be binding must be ‘‘ concurrent and obligatory upon each at the same time,” (as decided in 18 Barb., 318, and 21 Wend., 139,) has been in more recent cases abandoned, and it is said that such a subscription is a continuing offer, until withdrawn.

But when the offer was accepted the minds of the parties met and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiff constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting, in order to perfect a valid contract on the part of the defendants. It was precisely the same, as if the parties had met at the time of the acceptance and the offer had then been made and accepted and the bargain completed at once. Boston & Maine R. R. vs. Bartlett, 3 Cush., 227. Conn. & Pass. R. R. vs. Baily, 24 Vt. Rep., 478. Troy Acad’y vs. Nelson, 24 Vt. Rep., 189.

The second objection, that conditional subscriptions are contrary to public policy, is said to be peculiar to Now York, and not followed in other States. Vide Pierce on Railways, p. 71. In 15 B. Monroe, 235, the Court finds the power of the corporation to accept such conditional subscriptions, under the clause of the charter of the company in that case, authorizing the President and Directors to dispose of their unsubscribed stock for the benefit of the company, and declares it does not seem to be prohibited by sound policy ; that such construction is sanctioned by general usage under similar provisions in other charters. Vide also, 16 B. Monroe, 364, to the same effect. This conclusion seems to follow necessarily, from the doctrine that a conditional subscription is but a continuing offer, which is final and absolute when accepted; all subscriptions becoming thus ultimately unconditional and absolute.

If the corporation after organization, may dispose of their stock without limitation, except so far as expressly restrained by their charter,.and a conditional agreement when accepted is equivalent to an absolute contract, it would seem a necessary consequence that all contracts for stock in consideration of a particular location, when complied with by the company, would be as binding on both parties as if the contract had been absolute and unconditional. For however adverse to public policy such conditions prior to the formation of the corporation, the location and construction of the road is the peculiar province and duty of the President and Directors, and a contract made by them in execution of their corporate powers must be presumed to be made in promotion of the public interest, .unless shown to the contrary.

The second prayer of the appellant, and third of the appellee, require the Court to determine the legal effect on the right of action of the appellees, of their non-compliance with the section of the original charter, requiring the road to be commenced within three years ; and of the omission of the appellees, to make any call for the payment of any part of the money subscribed by the appellant, until the 25th of June, 1857.

As to the first branch of this inquiry, it is well settled that non-compliance with the provisions of a charter, is not a matter of defence collaterally between corporations and its stockholders or debtors. It belongs exclusively to the State, to determine whether it will exercise its prerogative of forfeiting or annulling the charter. 9 Wend. Rep., 351. 4 Johns. Ch. Rep., 379. Angell & Ames on Corp., 3d ed., 747. 4 Eng. L. & Eq., 455. 24 Vt., 476. The Planters Bank vs. The Bank of Alexandria, 10 G. & J., 346.

The modification of the charter in enlarging the time of commencing and completing the work, is one of those incidents to till charters which comes within the constitutional power of the State to exercise, and with due notice of which, all its citizens must be presumed to contract.

(Decided May 12th, 1866.)

It is not one of those fundamental radical changes, which diverts the funds from the original purpose to which they were dedicated, or is manifestly prejudicial to the stockholder, hut comes within that class of cases in which the change was held to be auxiliary to the original object of the incorporation, and beneficial to the stockholders, vide Pierce on Railroad Law, p. 78, note 2, and authorities there cited.

As to the effect of the omission to make calls :

Lapse of time, not amounting to the bar of limitations, is not a defence to an action at law. The contract in this case according to the more recent authorities was a continuing offer, which was accepted by the appellees by the adoption of the “Green Spring” route on the 31st 'of March, 1857. Ho calls were made until the 25th of June following. The statute of limitations did not begin to run until the several calls wore due. 6 H. & J., 57.

The objection to a continuing offer, that it suspends indefinitely the liability of the conditional subscribers is sufficiently answered by the consideration, that all such offers are subject to retraction, and may he recalled, if their acceptance is unreasonably deferred. It results from these views, that the judgment below must be affirmed.

Judgment affirmed.