Central of Georgia Ry. Co. v. Union Springs & Northern Ry. Co. , 144 Ala. 639 ( 1905 )

SIMPSON, J.

This is a proceeding by appellee to condemn a right of way over certain lots in Union Springs, Alabama.

The first proposition insisted upon by the appellant is that the! appellee corporation Aims not. duly organized according to- our statutes, and consequently, had no right to condemn the right of way. It claims that the corporation was not duly organized because the certificate of its organization does not contain the names of the incorporators. While it is true that 1163 of the Code does state that “when duly organized a corporation has power, etc,” yet, to give that expression the strict construction contended for by the appellant, Avould be to declare that all other powers of the corporation are dependent upon a literal compliance Avith all the requirements of the statute and to abrogate the doctrine of de facto corporations and to admit the plea of md fiel corporations in all suits brought by them.

It is true that in 2nd Coolc on Corporations, (5th ed.) § 637, it is stated that ‘“where a railroad corporation attempts to acquire a right of Ava.y, the person, whose property AA'ill be affected thereby, may oppose the acquisition of the right of Avay by showing that the company is not legally incorporated,” but a reference to the case on AA’hich that remark is based shows that the act under AA'hich the corporation professed to act required it to begin construction and expend ten per cent, of its capital Avithin five years, and specially declared that if it did not do' so “its corporate existence and powers should cease.” Nothing had been done and 'there was no pretense of a de facto corporation. — Brooklyn W. & N. Ry. Co. v. Broadway Ry. Co., 72 N. Y. 245.

In the same section the learned author goes on to state that, “If there is a law authorizing incorporation, and a company has attempted 'to organize under it, and has acted as a corporation it is a de facto corporation, and its de jure existence can be questioned only by the state.” This proposition is fully borne out by the great weight of authority, notwithstanding the remarks contra in the case of N. Y. Cable Co. v. Mayor, 104 N. Y. 43; Independent Order, etc. v. United Order of Foresters, 94 Wis. 234, 239-40; Brown v. Calumet River Ry., 125 Ill. 600, 606; Portland & Greenwood Turnpike Co. v. Bobb, 88 Ky. 226, 228; Wellington & P. R. R. v. The Cashie, etc. Lumber Co., 114 N. C. 690.

This court has declared that “a corporation de facto exists when, from irregularity or defect in the organization or constitution, or from some omission to comply with the conditions precedent, a corporation de jure is not created, but there has been a colorable compliance Avith the requirements of some law under which an association might be lawfully incorporated for the purposes and powers assumed, and the user of the rights claimed to be conferred by the law — when'there is an organization Avith color of law and the exercise of corporate franchises,” and it also states that such de facto- corporations “are- under the protection of the same law and governed by the same legal principles as those of the former so long as the state acquiesces in their existence and the exercise of corporate functions. A private citizen, Avhose rights are not invaded, Avho has no cause of complaint has no right to inquire collaterally into the legality of its existence. This can only be done by a direct proceeding on the part of the state, from whom is derived the right to exist as a corporation and Avhose authority is usurped.”- — Owensboro Wagon Co., v. Bliss, 132 Ala. 253, 256. See also Bibb v. Hall, 101 Ala. 80, 96.

It is not necessary to decide whether or not the facts show a substantial compliance Avith the statute..

It is next insisted that the appellee company having-been built according* to charter to1 Union Springs, and having fixed its terminus' by establishing- its depot, it cannot now extend its line to the proposed point near the water works. It is true that the railroad Avas- organized to run from Ft. Davis to Union Springs, but such expression does not mean that it shall stop at the corporate limits. A reasonable interpretation, Avhich is also in accordance with the universal custom in such cases, is that the railroad shall fix its terminus at such place in said city as shall be agreed upon between said railroad and the city authorities. — Miles on Eminent Domain, § 115; Farmers’ Turnpike Road Co. v. Coventry, 10 Johnson’s Rep. 389; Rio Grande R. R. v. Brownville, 45 Tex. 88.

There is no proof that ’the railroad company ever intended to make its terminus at the point to which it has been running, except the mere fact that it built a depot there and,has been using it. On the contrary, the ordinances of the city of Union Springs, running back to December 1900, when this road was contemplated, granted the right of way to said company along the proposed line to a point on Powell street, near the water works, showing that 'the original intention was to run to that point. In addition, it is shown by the evidence that that was adopted as the terminus by resolution of the corporation, and a considerable portion of the line graded in 1901, and that it had been built in that direction from time to time as the money could be obtained. These being the facts, we1 'hold that there is no' merit in this contention.

It is next insisted that, as the appellee has no property at the point to which it is sought to run the road, and as /he right of way sought would not connect in any way with the main line of appellee, this terminus is sought not for public use but for private benefit. In regard to the first proposition, the line of the road as shown upon the map, in evidence, shows that tins extension is a continuation of the main line. It is not necessary that the railroad should own property at a certain point in order to make its 'terminus there. It being a part of a public railroad, for public purposes and it being the terminus originally fixed as before shown, we must presume that the building of it 'to such point is for the purpose of serving the public.

We find no error in the record and the judgment of the court is affirmed.

Affirmed.

Haralson, Dowdell and Denson, JJ., concurring.