Moore v. Whitcomb , 48 Mo. 543 ( 1871 )

CuRRiER, Judge,

delivered tbe opinion of tbe court.

This action was commenced by tbe plaintiffs, as creditors of tbe Cairo & Fulton Railroad Company, against the defendant, as tbe sole remaining officer of the company competent to act as a trustee under tbe statute in relation to dissolved corporations. (Gren. Stat. 1865, p.-329, § 19 ; R. C. 1855, p. 375, § 19.) Tbe petition is demurred to, and the questions presented for consideration arise upon tbe action of the court in sustaining the demurrer. It is conceded that this proceeding cannot be sustained unless it is shown that tbe corporation was dissolved at tbe time tbe suit was instituted. As showing such dissolution it is averred in tbe petition as follows:

“ The plaintiffs further relate that by an act of the Legislature of tbe State of Missouri, approved February 19, 1866, entitled ‘An act to provide for tbe sale of certain railroads and-property by tbe governor, to foreclose tbe State’s lien thereon, and to secure tbe early completion of the Southwest Branch Pacific, tbe Platte Country, tbe St. Louis & Iron Mountain, and the Cairo & Fulton railroads of Missouri,’ tbe charter of said corporation was repealed, and tbe government of tbe State of Missouri, by which the same was granted, reclaimed, seized and took possession of the franchises of said corporation, and together with the road, rolling stock and other property of said corporation, on the 1st day of October, 1866, sold said franchises, whereby said corporation, on the day and year aforesaid, became and is dissolved.”

The repeal of the charter and the dissolution of the corporation are here distinctly averred. If these. averments. are to be regarded as allegations of facts, and not merely as legal conclusions from the facts previously stated, then the dissolution of the corporation stands admitted by the pleadings, for the demurrer admits .all material facts that are properly set forth in the petition. (See Mumma v. Potomac Company, 8 Pet. 281.) The petition, however, states the following additional facts: “ That said corporation failed to complete its railroad.; that the same is in .an,.unfinished condition and abandoned.; that the same has become dilapidated and gone. to waste,, and that the corporation has not kept .up or maintained .its. corporate existence, or had or held a legal election for officers thereof since the election held in 1861.; ” and that the present defendant is the only surviving of the officers of said dissolved corporation qualified under the constitution and laws of this State to act as a trustee of the property thereof. The petition thus shows that the corporation had held no election for the choice of officers for the nine years preceding the filing of the petition herein; that only one of the officers elected in 1861 was in.a position to;.act as trustee under the statute; that the road had gone .to decay and been abandoned; that the State had foreclosed, its lien android out the road and rolling stock and other property of the corporation, as also its corporate rights and franchises, .Was. the corporation thereby, within the meaning of the statute,, dissolved ? In Slee v. Bloom, 19 Johns. .456, it was determined that a corporation might be dissolved by a surrender of its franchises, and that if a corporation suffered acts to be done which had the effect to destroy the-end and object for which it was created, it was equivalent to a surrender of its rights. . Now. the petition in the:.case before us shows clearly that the corporation in question had suffered acts to be done which destroyed the end and purpose for which the charter was originally granted. It had itself abandoned these ends and objects, for it is alleged in the petition that the corporation was created for the sole purpose of constructing and operating the railroad; and that purpose, as the petitioner shows, was given up and abandoned. Spencer, C. J., in delivering the opinion of the court in Slee v. Bloom, says : “ The argument is that, being incorporated for twenty years, there exists a corporate capacity for that period, and that although all the functions of the corporation have ceased, yet they may be resumed. The 'Legislature never meant, nor does the act authorize the conclusion, that the corporation should 'remain and continue during all that period nolens volens. It was implied that during that period they should do nothing to forfeit their rights, nor surrender them back, nor do any act tantamount thereto. * * * I doubt extremely whether the capacity to resume the’ functions of the corporation does not in fact exist, but it is not necessary to decide that point. I consider it merely as a matter of speculation, thrown out without any practical reference to the cause, as a stumbling-block to the attainment of justice between the parties.”

This court, in its advisory opinion, reported in 37 Mo. 184, referring to the sale of railroads under the State lien, holds this language: “When the State becomes the purchaser of such railroad under the lien reserved, both the lien and the former company are extinguished.” According to this view the seizure and sale under the State lien extinguished the Cairo & Fulton Railroad Company, such seizure and sale destroying the objects for which the corporation was instituted. Upon the whole we are disposed to hold, in accordance with the decision in Slee v. Bloom, that the facts alleged in the petition sufficiently showed a dissolution of the corporation by a practical surrender and abandonment of its corporate rights and franchises. The further point is made that there is a defect of parties defendant. As previously suggested, the petition avers and the demurrer admits that the defendant is the only surviving officer of the corporation competent to act as a trustee under the statute. This fact standing admitted by tbe pleading, disposes of tbe question in regard to tbe proper persons being joined as parties defendant.

Tbe view we have taken involves a reversal of tbe judgment, and it will accordingly be reversed and tbe cause remanded.

Tbe other judges concur.