Duke v. Cahawba Navigation Co. , 10 Ala. 82 ( 1846 )

GOLDTHWAITE, J.

1. We think the argument that the ordinance appended to our constitution is a part of that instrument, and can only be abrogated and annulled in the same manner as any other part, cannot be sustained. By the constitution, the powers of the State government are restricted in the particular matters covered by it, and the ordinance is the declaration by the people, that certain general powers, otherwise appertaining to the State as a sovereignty, shall •not be exercised in particular cases. It provides also, that (the disclaimer shall be irrevocable without the consent of the United States. The State government being invested with •the entire authority of the people, except where they have •chosen to restrict the government, it follows that all the external relations of the people with the citizens of other States <or with the government of the United States, must be conducted by the State government. The ordinance itself indicates that it is revocable with the consent of the United States, and as the consent of the people of this State can only be expressed through the State government, it follows, that when the assent of both is given by the constituted authorities of each, the powers disclaimed may be resumed and immediately exercised by the State authorities, under the general powers, these not being restricted otherwise than by the ordinance. As the ordinance is thus revocable by the consent of the United States, it does not seem to admit of material doubt, that a consent to a partial abrogation is effectual as a revocationyu'o tanto.

2. The next question is, whether the consent of the State and of the United States, has been given to the company to collect the toll demanded. The 16th section of the charter provides, that nothing in the act shall be so construed as to prevent or obstruct the free navigation of the river, so far as it is now. a navigable stream, until the assent of Congress shall be obtained. This seems to be given by the act of the 24th May, 1828, which gives the consent of Congress to the act of this State, incorporating the company. [8 Laws U. S. 121.] These acts are certainly entitled to be considered as passed by each body, with reference to the powers delegated to them, and it is but -just to our legislature to presume they were guided by the ordinauce, and did not intend to invest the company with the right to charge tolls, unless the consent of the United States should be given; if that consent was necessary to the validity of the act. Nor can we intend the assent of Congress was to any thing beyond the imposition of toll. Any other intendment would charge that body with legislation beyond their appropriate functions. We think no other conclusion is to be drawn from these acts, than that both Congress and the State have assented to the revocation of the ordinance, so far as is necessary to invest the company with the right to collect toll, in conformity with the charter. We are not prepared to say, that the provisions of this charter, so far as the extent of duration, or the amount of toll, could be extended without further consent ,• but no attempt, in either particular, is made in the subsequent acts reviving and amending the charter. We concur then, with the opinion of the circuit Judge, that no assent of Congress was necessary to the subsequent acts of legislation.

3. The 15th section of the charter provides, that stock shall be transferable only on the books of the company, and it is insisted, this is obligatory, however the by-laws may be. The better opinion, however, sustained by numerous decisions, seems to be, that clauses of this nature are inserted for the benefit of the corporation only; and that as between vendor and vendee, the stock-passes by any other mode of transfer. [Angel & Ames on Corp. 295, and cases there cited.] We do not understand from the exceptions taken, that transfers of the stock held by the witnesses were not actually made, but merely that they were not made in the manner required by the charter and by-laws. However the case might be if a specific liability was imposed by the charter on the stockholders, and the mode of transfer pointed out, we think, in the absence of any such liability, the form of the transfer is immaterial, between the’ buyer and seller, and that a transfer bona fide made, divests the interest, and renders the individual competent as a witness.

4. The organization of the company was certainly a matter which the books of the company were competent evidence to establish. By the organization of a company, we understand the meeting of individuals claiming to be corporators, and their action in choosing officers and servants. If the books themselves were not evidence of these facts, it w ould be difficult, after a lapse of time, to establish them in any other mode. It has been held, when the charter required two thirds to form a quorum, that the books were evidence that this portion of the corporators did assemble. [Com. v. Wailper, 3 S. & R. 29.] The same principle is asserted in Gray v. Lynchburg & S. Com. 4 Rand. 578, and we can see no distinction between proving acts of the corporators after the corporation is formed, and the acts of corporators in forming the corporation. [See Angel & Ames on Cor. 506.]

5. Immediately connected with this subject is the charge asked, that it was incumbent on the corporation to show the amount of stock subscribed, and that the cash was paid at the time. Whatever favor objections of this kind are entitled to when the issue is on a quo warranto, they are entitled to no weight coming from a stranger, to the corporation, when it is shown to be organized from the acts of those who are invested with the power of organization. It has been held, that the certificate of commissioners, made a condition precedent to incorporation, cannot be contradicted for the purpose of defeating a suit by the corporation. [Tar River Nav. Co. v. Neil, 3 Hawkes, 520.] When a corporation has gone into operation, and rights have been acquired, every presumption, it is said, shall be made in favor of its legal existence. [Hagerstown Co. v. Cruger, 5 H. & J. 122.] The charter provides for the incorporation of the company, and directs that it may go into operation when certain acts are done. The existence of the corporation is derived from the act, and it admits of question, when the State permits a user of the franchise, if it is open to question at the suit of an individual. [Fire Department v. Kip, 10 Wend. 269; An. & Ames, 506.] We are clear, therefore, in the opinion, that the corporation on this issue, were required to show nothing beyond an organization under the charter.

6. After providing for the mode by which the company shall procure the certificate of the Governor, that the improvement of the river is completed, so as to authorize the collection of toll, it is provided by the 1.3th section, that the Governor shall appoint some suitable person, whose duty it shall be, whenever said river shall be considered by him not to be in such repair as to admit of the easy and safe descent of boats, to report the same to the Governor, and the said company shall not receive any toll until the said river shall be reported in sufficient repair, &c. We think the intention of this section is to put the river under the supervision of the commissioner named, and that his certificate is the only matter to defeat the claim for toll, after the river is once in order.

7. It is somewhat difficult to conceive, how the commissioners could well be appointed by the Governor, under the 10th, 11th and 12th sections of the charter, unless the company was organized, yet it is quite clear the certificate given from the executive was not conclusive evidence that the corporation was organized. We have already shown how this could be proved, and the inference from the record is, that it was sufficiently proved; but, notwithstanding this was a point on which the defendant was justified in going to the jury, and was entitled to have the law applicable to it correctly given to them. In this particular we think the court erred.

8. And also in permitting evidence to go to the jury not read in their hearing, or read by the opposite party. We are not to be understood as deciding it is necessary to absolutely read to the jury ali of a written document, but if the opposite party insists, such portions of the books and papers as are relied on must be read, or the necessary information given, to enable the adverse party to see what goes as evidence.

For these errors the judgment is reversed, and the cause remanded.