Penobscot Boom Corp. v. Lamson , 16 Me. 224 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

When one person professes to represent another, or a body corporate, he should exhibit his authority; and attorneys, according to the practice of many courts, appear by warrant of attorney ; but in our practice, where the law recognizes certain persons as officers of the court, and entitled as such to represent others, as an official duty, no such warrants have been required; and the statement of the attorney, that he does represent a person, or body corporate, has been deemed sufficient. Should he abuse such power, he may be deprived of his privilege, and be subjected to an action for damages by the party injured. The sixth rule of the Court of Common Pleas requires no more than such a statement by the attorney, and it would seem, that by the rule, the court may give him leave to appear without requiring such statement. The objection having been overruled, the court must be regarded as having granted such leave, if it were necessary. No such rule exists in this court.- The Supreme Court of the TJnited States appears to entertain this opinion respecting the rights of attorneys to represent others, according to our practice. Marshall Ch. J. says, “certain gentlemen, first licensed by government, are admitted, by order of court, to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause, has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any State, or of the Union. This universal and familiar practice, then, of permitting gentlemen of the profession to appear, without producing a warrant of attorney, forms a rule, which is as applicable in reason to their appearance for a corporation as for a natural person.” Osborn v. United States Bank, 9 Wheat. 738.

The existence of such a corporate body is denied, and it is said that it does not come within the legal description of a corporation, either sole or aggregate, as defined by any code of laws. Corporations originating according to the rules of the common law, must be governed by it in their mode of organization, in the manner of exercising their powers, and in the use of the capacities conferred. And when one claims its origin from such a source, its rules must be regarded in deciding upon its legal existence. The legislature may however create a corporation, not only without conforming to such rules, but in disregard of them; and when a corporation is thus created, its existence, powers, .capacities, and the mode of exercising them, must depend upon the law of its creation. It was the pleasure of the legislature in this case to create a corporate body, without requiring a conformity to the usual mode of organization known to the law. The grant is to one person, who was at liberty to associate others, or to have a succession without it. No provision is made for a division of the property allowed to be held into shares, or for the call of any meeting, or the choice of a clerk, or any other officer, or the keeping of any records, or any mode of organization. And yet many, important powers and privileges are granted with an evident design to permit their exercise. The grant being to one person and without any such provisions, the inference necessarily is, that it was the intention of the legislature to permit that one person or his successor to exercise all the corporate powers, and to make his acts, when acting upon the subject matter of the corporation and within its sphere of action and grant of power, the acts of the corporation. There does not appear to be any other mode of carrying into effect the intention of the legislature. And if there are doubts, whether the person controlling the corporation has acted in behalf of the corporation, they are necessarily to be solved by proof. And if any evils have arisen or shall arise from any proceedings under the act, the legislature may provide a remedy. The answer to the arguments against its existence arising from a want of organization and choice of officers is, that the act requires them. In the case of Day v. Stetson, 8 Greenl. 365, where a charter was granted to one, and provision was made for taking associates and calling a meeting of them, it was decided, that it was a condition subsequent, and that the neglect would not prevent the act taking effect, or the exercise of the powers granted by it. The case finds, that “ it was proved that the boom was erected under the direction of R. Dwinal, and went into operation in the spring of 1832, and continued so ever- sinceand this sufficiently proves the acceptance of the act of incorporation, for it could not be lawfully done but by virtue of the act, and the presumption of law is, that one acts lawfully when he may do so by a special grant of authority for that purpose. There is not the same finding in all the other cases, but there is sufficient testimony to prove that the boom was erected, and that it has been maintained by the one professing to own the franchise and to act under it. And the acceptance may be presumed from the exercise of the corporate powers. Bank of the United States v. Dandridge, 12 Wheat. 71; Trott v. Warren, 2 Fairf. 227. And the act of incorporation, with proof of the exercise of the corporate powers since 1832, was sufficient evidence of the existence of the corporation. Utica Ins. Co. v. Caldwell, 3 Wend. 296; Day v. Stetson, 8 Greenl. 365. There being no provision for the call of any meeting, or for the choice of any officers, when a sale of part of the franchise to Vea-zie required some evidence of the assent of two minds to perform a corporate act, there might be more difficulty in proving the acts of the corporation, but it is not perceived, that the mode of proof would be changed.

It is contended also, that if the corporation has existed, it has been dissolved. In what manner corporations may be dissolved, and what will not operate as a dissolution, has been determined in many decided cases. A corporation will not be dissolved by a sale of the franchise ; or of all the corporate property and a settlement of all its concerns and a division of the surplus; or by a cessation of all corporate acts ; or by any neglect of corporate duty; or any abuse of corporate powers; or by doing acts which cause a forfeiture of the charter, without a judgment declaring such forfeiture. Such dissolution can take place only, 1. by an act of the legislature, where, as in this State, power is reserved for that purpose; 2. by a surrender, which is accepted, of the charter; 3. by a loss of all its members, or of an integral part, so that the exercise of corporate functions cannot be restored; 4. by forfeiture, which must be declared by judgment of court. Shee v. Bloom, 5 Johns. Ch. 11. 367; Trustees of Vernon Society v. Hills, 6 Cowen, 23; Bank of Niagara v. Johnson, 8 Wend. 645; Wilde v. Jenkins, 4 Paige, 481; Canal Company v. Rail Road Company, 4 Gill & Johns. 121; Russell v. McLellan, 14 Pick. 63 ; Revere v. Boston Copper Company, 15 Pick. 351; Porter v. Kendall, 6 B. & C. 703 ; 2 Kent, 312.

Nor can a defendant take advantage of any abuse or misuse of the corporate powers, or object, that no mode of service, or of attachment, or means of redress or relief is provided. This would prove an oversight in the legislation, which ought to require immediate attention ; but it does not excuse a defendant from a performance of his duty, that the legislature has not provided for his obtaining redress for an injury, which he has suffered. As it appears to be important to have a decision upon the rights of this corporation these objections have been considered, although this defendant, according to our practice, is not in a position to call for proof of the existence of the corporation, not having pleaded it in abatement. Trustees in Button v. Kendrick, 3 Fairf. 384.

It will be perceived, that in speaking of the acceptance of the act of incorporation the objection that the boom is not owned by the corporation, has in substance been answered. The legal inference is, that the money which was expended by the owner of the charter was expended under it, and that the boom thereby became corporate property. The evidence confirms this presumption. The person who expended the money, could not be permitted to say, that he had not acted legally by virtue of the authority granted, but had placed a nuisance in the river. The jury were authorized, to find, that it was erected by the corporation, and parol proof might for this purpose, be admitted. 12 Wheat. 70. The corporation may not have acquired the title, and probably has not to any real estate; but this is not required by the act; the right of use is all that is necessary, although the act allows the title to be acquired.

Another objection is, that the logs were not surveyed as the act of incorporation requires. The ninth section of the act provides, “ that all logs rafted at said booms, or its branches, shall be measured, and their quantity ascertained by a person to be appointed by the Surveyor General of Bangor, should such a surveyor be appointed, otherwise by a surveyor appointed by the selectmen of said town.” The act of March 2, 1833, provides for the appointment of a Surveyor General for the county, “ who shall make his residence in Bangorand no other Surveyor General of lumber has been provided for or appointed. The act of incorporation had reference to a future Surveyor General as an officer to be created, and it designated him as the Surveyor General of Bangor, and when in the following year provision was made for such an officer, whose powers extended over the whole county, it is said that he is not the officer designated. It would scarcely be expected that the legislature, looking to the creation of a new office by a future legislature, should be able to refer to it by the exact definition, which might be adopted. The intention of the legislature is rather to be regarded, than any slight difference in the name of the officer. That intention must have been to obtain the advantage of the superior knowledge and skill to be expected from a Surveyor General in the appointment, and the uniformity of survey, which would result from it. This object would be equally secured whether he should be called Surveyor General of the county, or of Bangor ; and any advantages of local knowledge to be expected from a residence in Bangor were also secured. The act of incorporation, and the act providing for the office, both in substance apply to tire same officer, and the difference is rather in the description of the same Surveyor General, than as denoting a difference of title. The intention of the legislature will be fully answered by considering the description as comprehending such Surveyor General, as should reside and perform his duties in Bangor. To the objection, that “ scalers, and not surveyors were appointed,” the answer is, that the act of incorporation does not require the appointment of surveyors, but only that the “ logs shall be measured by a person to be appointed by the Surveyor General of Bangorand it is immaterial by what name he may be called.

The introduction of what was called the “ book of records,” was objected to, and the case finds, that the records were called for by defendants’ counsel, but it does not find, that the counsel received or inspected any such book, until after his objection to its introduction had been overruled, and the book admitted. The rule is, that if a book or document be called for by a notice to produce it, and it be produced, the mere notice does not make it evidence; but if the party giving the notice, takes and inspects it, he takes it as testimony, and it may be used, if material to the issue. Sayer v. Kitchen, 1 Esp. R. 210 ; Johnson v. Gilson, 4 Esp. R. 21; Wharam v. Routledge, 5 Esp. R. 235; Wilson v. Bowie, 1 C. & P. 8. Upon the view which has been taken of this case, the book was wholly immaterial.

Exceptions overruled.