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is discretionary, final, and conclusive. It is a part of the ecclesiastical polity of England, and does not apply to our religious corporations. The visitatorial power, therefore, with us, applies only to eleemosynary corporations. Civil corporations, whether public, as the corporations of towns and cities, or private, as bank, insurance, manufacturing, and other companies of the like nature, are not subject to this species of visitation. They are subject to the general law of the land, and amenable to the judicial tribunals for the exercise and the abuse of their powers. The
way in which the courts exercise common law jurisdiction over all civil corporations, whether public or private, is by writ of mandamus, and by information in the nature of quo warranto.b It is also well understood. that the court of chancery has a jurisdiction over charitable corporations for breaches of trust. It has been much questioned, whether it had any such jurisdiction over any other corporations, than such as were held to charitable uses. The better opinion seems, however, to be, that any corporation *chargeable with trusts, *305 may be inspected, controlled, and held accountable, in chancery, for an abuse of such trusts. With that exception, the rule is understood to be, that all corporations are amenable to the courts of law, and there only, according to the course of the common law, for or misuser of their franchises.c
11 Blacks. Com. 480, 481.
2 Kyd on Corporations, 174. The remedies against private corporations aggregate for neglect or breach of duty, by the writ of mandamus, and by information in the nature of a quo warranto, are treated at large and with the most full and satisfactory reference to authorities ancient and modern, English and American, in Angell f. Ames on Corporations, ch. 20 and 21, 3d edit.
- Attorney General v. Utica Insurance Company, 2 Johns. Ch. Rep. 384—390. i Ves. 468. 2 Atk. Rep. 406, 407. 3 Merivale's Rep. 375. 4 Wheaton, App. 20, 21. Attorney General v. Mayor of Dublin, 1 Bligh's Rep. 312. Sanderson v. White, 18 Pickering, 328. Angell s. Ames on Corporations, 3d edil. ch. 19. The New-York Revised Statutes, vol. ii. p. 462, have given to the chancellor jurisdiction over the directors and other
V. of the dissolution of corporations.
A corporation may be dissolved, it is said by statute ; by the natural death or loss of all the members or of an integral part ; by surrender of its franchises; and by forfeiture of its charter, through negligence, or abuse of its franchises.
This branch of the subject affords matter for various and very interesting inquiries.
In respect to public or municipal corporations, which exist only for public purposes, as counties, cities, and towns, the legislature, under proper limitations, have a right to change, modify, enlarge, restrain, or destroy them; securing, however, the property, for the uses of those for whom it was purchased.b A public corporation, instituted for purposes connected with the administration of the government, may be controlled by the legislature, because such a corporation is not a contract within the purview
of the constitution of the United States. In those *306 public corporations, there is in reality but one *par
ty, and the trustees or governors of the corporation are merely trustees for the public. A private corporation, whether civil or eleemosynary, is a contract between the
trustees of corporations, to compel them to account, and to suspend their powers when abused, and to remove any trustee or officer for gross misconduct, and to restrain and set aside alienations of property made by them contrary to law, or the purposes of their trust. The power may be exercised as in ordinary cases, on bill or petition, at the instance of the attorney general, or a creditor, director, or trustee of the corporation ; and these equity powers exist in the court of chancery, notwithstanding the like visitatorial powers may reside elsewhere. Ibid. sec. 34.
• 1 Blacks. Com. 485. Angell f. Ames on Corporations, ch. 22, 3d edit. In this country to dissolve a private corporation by statute, there must be & power for that purpose reserved in the statute or charter creating it; (2.) If by surrender, there must be an acceptance ; (3.) A loss of an integral part of the corporation, so that the exercise of corporate power cannot be restored, will work a dissolution ; (4.) A forfeiture for nonuser or misuser must be by the judgment of a court of law. Penobscot Boom Corporation v. Lawson, 16 Maine Rep. 224. Hodsdon v. Copeland, Ibid. 314.
• Story, J., 9 Cranch's Rep. 52. Greenleaf's Evidence, sect. 331. The People v. Wren, 4 Scammon, 269.
government and the corporators; and the legislature cannot repeal, impair or alter the rights and privileges conferred by the charter, against the consent, and without the default of the corporation, judicially ascertained and declared. This great principle of constitutional law, was settled in the case of Dartmouth College v. Woodward ja and it had been asserted and declared by the supreme court of the United States, in several other cases, antecedent to that decision. But it has become quite the practice, in all the recent acts of incorporations for private purposes, for the legislature to reserve to themselves a power to alter, modify or repeal the charter at pleasure; and though the validity of the alteration or repeal of a charter, in consequence of such a reservation, may not be legally questionable,c yet it may become a matter of serious consideration in many cases, how far the exercise of such a power could be consistent with justice or policy. If the charter be considered as a compact between the government and the individual corporators, such a reservation is of no force, unless it be made part and parcel of the contract. If a charter be granted, and accepted, with that reservation, there seems to be no ground to question the validity and efficiency of the reservation ; and yet it is easy to perceive, that if such a clause, inserted as a "formula in every charter and grant 307*
a 4 Wheaton, 318.
b Fletcher v. Peck, 6 Cranch's Rep. 88. The state of New-Jersey v. Wilson, 7 Ibid. 164. Terret v. Taylor, 9 Ibid. 43. The Town of Pawlet v. Clark, Ibid. 292. Grants of property and of franchises coupled with an interest, to public or political corporations, are beyond legislative control, equally as in the case of the property of private corporations. Story, J., in Dartmouth College v. Woodward, 4 Wheaton, 697—700. Town of Pawlet v. Clark, 9 Cranch's Rep. 292. See, also, supra, p. 275. If a charter or act of incorporation, be procured from the legislature upon some fraudulent suggestion, or concealment of a material fact, made by or with the consent or knowledge of the persons incorporated, it may be vacated or annulled upon scire facias, upon the relation of the attorney general. N Y. Revised Statutes, vol. ii. p. 579. sec. 13.
• Parsons, Ch. J., 2 Mass. Rep. 146. Story, J., 4 Wheaton, 708—712. M’Laren v. Pennington, 1 Paige's Rep. 102.
of the government, be sufficient to give the state an unlimited control, at its mere pleasure, of all its grants, however valuable the consideration upon which they may be founded, the great and salutary provision in the constitution of the United States, so far as concerns all grants from state governments, will become of no moment. These legislative reservations of a right of repeal, ought to be under the guidance of extreme moderation and discretion. An absolute and unqualified repeal, at once, of a charter of incorporation of a money or trading institution, would be attended with most injurious and distressing consequences. According to the old settled law of the land, where there is no special statute provision to the contrary, upon the civil death of a corporation, all its real estate, remaining unsold, reverts back to the original grantor and his heirs. The debts due to and from the corporation are all extinguished. Neither the stockholders, nor the directors or trustees of the corporation, can recover those debts, or be charged with them, in their natural capacity. All the personal estate of the
* Co. Litt. 13. b. 1 Blacks. Com. 484. So, where title to land is vested in an incorporated turnpike company, for the purpose of a road, and the road is abandoned, the land, said Ch. J. Nelson, reverts to the original
Hooker v. Utica Turnpike Company, 12 Wendell, 371. The decision in the case of State v. New Boston, 11 N. H. Rep. 407, is to the same effect, and a turnpike road under a charter only gives an easement or right of way subject to the toll. The right of soil does not pass except as an easement. Shaw, Ch. J. S. P. in 8 Metcalf, 266. The statute law of Massachusetts, is to the same effect. Act 1804, and Revised Statutes of 1835. But in New York, by statute of April 18th, 1838, ch. 262, whenever a turnpike corporation becomes dissolved, or the road discontinued by the company, the road becomes a public highway. By the N. Y. Revised Statutes, vol. 1. 3d edit. 712. It would seem that only upon the dissolution of a Turnpike corporation by the legislature, that the rights and property of the corporation vest in the people. Though trustees of a charity under a will, and afterwards incorporated, are guilty of breaches of trust, it is held that the heirs of the donor have no resulting trust or beneficial interest accruing therefrom, and that they could not sustain an application in chancery to compel the trustees to execute the trust. San. derson v. White, 18 Pickering, 328.
corporation vests in the people, as succeeding to this right and prerogative of the crown, at common law. A very guarded and moderate example of these legislative reser
* Edmunds v. Brown & Sillard, 1 Lev. Rep. 237. Co. Litt. 13. b. 3 Burr. Rep. 1868, arg. 1 Blacks. Com. 484. 2 Kyd on Corp. 516. Stato Bank v. The State, 1 Blackford's Ind. Rep. 267. Fox v. Horah, 1 Iredell's Eq. Rep. 358. In this case in N. C. the rigorous rule of the common law was declared by Mr. Justice Gaston in behalf of the Supreme Court, but he observed that by the Revised Statutes of N. Carolina of 1831, the law received very important alterations, and on the forfeiture or dissolution of a corporation, a receiver is to be appointed to take possession of the corporate property and collect the debts for the benefit of creditors and stockholders. The rule of the common law has in fact become obsolete and odious. It never has been applied to insolvent or dissolved moneyed corporations in England. The sound doctrine now is as shown by statutes and judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a court of equity will lay hold of the fund and see that it be duly collected and applied. The death of a corporation no more impairs the obligation of contracts than the death of a private person. Story J. in Wood v. Dummer, 3 Mason R. 309. Lord Redesdale in Adair v. Shaw, 1 Scho. f. Lef. 261, 2. Mumna v. The Potomac County 8 Peter's R. 281. Buckner, Ch. in Wright v. Petrie, 1 Smedes f. Marshall Ch. R. 319. Read v. The Frankfort Bank, 23 Maine R. 318. The act of the Legislature of Mississippi of July 26, 1843, making provision for proceeding against incorporated banks for violation of their franchises declares that upon a judgment of forfeiture the debtors shall not thereby be released, but the court is to appoint trustees to take charge of the books and assets of the bank, and to sue and collect the debts, and sell the property of the bank and apply the proceeds to the payment of the debts of the bank. This just and reasonable provision was sustained in a constitutional provisiou, by the court of errors and appeals of Mississippi, in the case of Nevill v. Bank of Port Gibson, in Jan. Term, 1846, after a masterly consideration of the case. In the State of Louisiana, by statute in 1842, the legislature provided for the distribution among the crediturs of the property of insolvent corporations whose charters had become forfeited, and this was held to be a constitutional exercise of legislalative power. Mudge v. Commissioners &c. 10 Robinson, 460. The Statute Law of Georgia makes a permanent provision for the appropriation of the assets of insolvent banks, who shall thereby forfeit their charters, to the payment of their debts. Hotchkiss Codification of the Statute Lau Georgia, p. 362, 3. The Statute Law of New-Jersey, R. S. 1847. p. 138, recognizes a distribution of the stock on the dissolution of a corporation aster payment of its debts. White v. Campbell, 5 Humphrey's Tenn. R. 38.