Palliser v. Home Telephone Co. , 152 Ala. 440 ( 1907 )

ANDERSON, J.

Section 46 of the Act of 1903, page 335, controls, as to the increase or decrease of the capital stock or bonded indebtedness of all corporations, whether existing at the time of its enactment or not, unless of the class excepted from the operation thereof by section 54, and which are designated as those covered by Articles 3 and.. 4 of Chapter 28 and Chapter 63 of the Code of 1896. Article 3 relates to “Mutual Aid Societies,” Article 4 to “Building and Loan Associations,” and Chapter 63, relates to “Insurance Companies.” The respondent belonging to neither of the excepted classes of corporations, is included in the Act. It is true, that section 54 of the Act provides, “Nothing in this Act shall be so construed as to add to, take from, or otherwise affect the rights, powers, duties and liabilities of any corporations now existing chartered under the laws, special or general, of this State.” And the appellant insists, that the action complained of relates to the powers of the corporation, and that said section 54 provides that the old law is not repealed in this respect. Section 46 provides for an increase of the capital stock or bonded indebtedness “of any corporation formed under this Act or heretofore incorporated under any general or special law of this state.” (Italics ours.) This is a special provision and should prevail as against a general section that may be in conflict therewith, and section 54 is but a general section.

“It is a well-settled principle of construction, that specific terms covering the given specific matter will prevail over general terms in the same or another statute which might otherwise prove controlling.” — Kepner v. U. S., 195 U. S. 100, 125; Brooks v. Mobile, 31 Ala. 227; Lehman-Durr & Co. v. Robinson, 59 Ala. 234; Caulfield v. Finnegan, 114 Ala. 49; 26 Am. & Eng. Ency. Law, 296. Subdivision 7 of section 1256 of the Code of 1896, which forbids a bonded indebtedness from exceeding the capital stock is succeeded by subdivision (c) of section 7 of the Act of 1903, page 314, and which fixes no limitation on the amount of bonded indebtedness.

Section 46 provides that the notice of the meeting for the purpose of increasing the stock or bonded indebtedness, “shall state what increase is proposed to be made in the capital stock or indebtedness of the corporation.” But the section further provides, “that it shall be lawful for the corporation to increase its capital stock or bonded indebtedness in conformity with such consent to an amount equal to or less, but no greater than, that stated in the published notice of the meeting.” It will be observed, that the limitation fixed by law is, that it cannot exceed the amount set out in the notice and such being the case, we think the notice was sufficient in giving the maximum amount of the proposed increase. Nor do we think the respondent had to give separate and distinct notice, as to the proposed increase of stock and bonded indebtedness.

The bill not being for discovery only was not subject to the demurrer going to so much thereof as sought discovery, because answer under oath was waived. — Section 679 of the Code of 1896; Bromberg v. Bates, 98 Ala. 621. As to what weight the answer should receive or whether or not the complainant could object to its insufficiency when made, we need not decide. — Code, § 679; Buie 34, page 1209, of the Code of 1896; Tillinghast v. Chance, 121 Fed. Rep. 435. The interrogating feature was but a part of the bill. — Hendrickson v. Romaine, 9 C. E. Green. 236.

We cannot hold that the error in sustaining the demurrer to this feature of the bill was error without injury, because the answer would have been of no benefit to complainant, nor can we assume that the respondent would not have answered ivhether relieved from doing so or not under rule 34.

The decree of the chancery court is affirmed in sustaining all the demurrers except the 13th, but is reversed as to that one, and a decree is here rendered overruling the same. The general rule is to affirm when any of the grounds are good whether the others are or not, but this rule does not prevail, where the demurrers relate to sepr arate and distinct features of the bill and the ones sustained do not affect the entire equity of the bill.

Affirmed in part, and reversed and rendered, and the cost of this appeal to be divided equally between appellant and appellees.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.