Tuscaloosa Scientific & Art Ass'n v. State ex rel. Murphy , 58 Ala. 54 ( 1877 )

STONE, J.

The rulings of the Circuit Court on the demurrer filed to the information are shown only in the bill of exceptions. Our uniform holding is that such question, thus presented, will not be considered. — Petty v. Dill, 53 Ala. 641.

A corporation is a franchise. Its privileges are conferred by the sovereignty; and hence, it is defined to be “a branch of the king’s (or governmental) prerogative, subsisting in the hands of a subject,” or citizen. — 2 Blackst. Com. 37 ; 3 Kent Com. 458; The State v. Moore & Ligon, 19 Ala. 514. The power to create private corporations, and to confer on them privileges not enjoyed by the general public, is rested on the public services such corporations are supposed to perform ; such as increased facilities to commerce, employment given to labor, and increase of public wealth. Or, when the corporation is eleemosynary in its purposes, the benefaction it proposes to bestow. It is thus shown that the public have an interest even in private corporations, and in their uses and abuses. Based on this idea, this court held, in The State v. Moore & Ligon, 19 Ala. 514, that the solicitor of the circuit, of his ovm volition, could not institute proceedings to have a private charter declared forfeit, for nonuser and misuser. And it is here contended, on the authority of that case, that the present information shoiild not be entertained, because it does not appear that the Attorney-General, or any other competent State authority, directed or authorized the institution of the proceedings.

The case of The State v. Moore & Ligon, supra, arose under the act of 1843. — Olay’s Dig. 515, § 39. That act authorized the solicitor of the circuit to sue out the process therein authorized, “at the instance of, and in behalf of the State,” <fcc. Under the clause we have italicised, this court held that the solicitor could not move in such matter of his own mere volition, but could only act under the direction of the Legislature, or of the Attorney-General. We think the reasoning of our predecessors in that case was sound.

The present case arises under statutory provisions, which were enacted after the case of State v. Moore & Ligon was determined. — -See Code of 1852, §§ 2651-2; Code of 1876, §§ 3419-20. Under this statute, not only may the judge of the Circuit Court direct the solicitor of tbe circuit to bring the action, but “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 same is brought.” This language "is so entirely unlike that of the former statute, that we feel bound to give it a different construction.' The Legislature thought they were sufficiently guarding the public against an abuse of its process when they required security for costs. We feel constrained, by the language of the statute, to hold that whenever security for the costs is given and approved by the clerk, any person may institute and prosecute proceedings under section 3420, Code of 1876.

The act, under which the appellant claims the right to carry on its business, has a very attractive caption. — See Pamph. Acts 1865-6, p. 269. “Encouraging science and art, and aiding the University of the State in replacing its library, and establishing a scientific museum,” are certainly very praise-worthy purposes. The testimony in the present record tends to disclose the machinery of a lottery, organized and conducted as such enterprises usually are, for the determination and distribution of pecuniary prizes, on the combination principle. Looking into the body of the statute, we fail to find any warrant for setting up a lottery. How far the imposing manifesto has been realized, in the encouragement of science and art, or in aiding the State University in replacing its library, and establishing a scientific museum, or, how far the premiums offered by the Association for essays on science and art, or works of art, or useful inventions, have tended to awaken the creative and inventive genius of the “citizens of Alabama,” the record does not inform us. We only know the working of the enterprise in the evidence before us. — See Marks v. The State, 45 Ala. 38.

In three particulars we think the Circuit Court erred. There is much testimony in the record, tending to show that the agents and employes of the Association did not follow the rules adopted and given to them for their government; and that these violations of rules were known to, and not disapproved by those having control and management of the corporation. The stereotyped indorsement on what are called “certificates of subscription,” indicates very clearly that the premiums and awards sometimes offered to the winners of prizes were not expected to be taken, but that the value in money would be demanded and paid. The appraisement was to be a condemnation — not even a reduction of value — for the printed form affirms “that the articles drawn by this certificate are not worth the prices affixed to them.” This savors strongly of simulation. A vigilant, faithful administration of the- law looks beyond the thin covering, under which violators of legal duty sometimes seek to conceal themselves. The law deals with facts, when they can be ascertained; not with pretexts and disguises. Still, the evidence tended to show that the rules offered in evidence were, at least sometimes, furnished to the agents. The testimony was simply oral; and it was for the jury to determine whether it was the sincere purpose of the company to be governed by the rules; whether they were disregarded by the agents, with the knowledge, connivance, acquiesence, or approbation of those having the management; or whether this was mere machinery, to give to the performance a show of legality. The rules should have been allowed to go the jury, with proper instructions.

Charge, numbered 9, as asked by defendant, should have been given. The circumstances therein supposed, are proper considerations for the jury, in determining the credibility of witnesses thus circumstanced.

Charge No. 3, as asked, asserts a correct legal proposition, and it should have been given. The court could not affirm, as matter of law, that the officers of the Association knew the agents were violating the rules, no matter how strongly the testimony might tend; that was a question for the jury. They must determine whether they believe the evidence or not.

We have said above that the public have an interest in private corporations. They have an interest in such corporations, because they affect the moral and economic conditions of society. These are the considerations on which the franchise is granted or withheld, and they control in the matter of revoking the privilege for misuser. Hence, although private individuals, having no special or peculiar interest, may institute proceedings for their dissolution, such proceedings are more than a private suit. They are brought in the name of the State, although when they are founded on the information of an informer, he must be joined as plaintiff with the State. — Code of 1876, §§ 3419-20, . 3425. And in all cases of conviction, whether the proceeding be set on foot in the name of the State alone, or at the instance of an informer, the solicitor is entitled to a fee. — See Fees of Solicitors, § 5047, Code of 1876. This shows that such proceedings are conducted'in the interest of the State, no matter how instituted. The relator, in such case, can neither confess errors, nor dismiss the suit, without leave of the court before which it is pending.

Reversed and remanded.