Pittsburg & Steubenville Railroad v. Allegheny County , 1875 Pa. LEXIS 190 ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court, November 4th 1875.

The Act of 24th of February 1853, did but authorize the county of Allegheny, through its commissioners, to subscribe to the stock of the Pittsburg & Steubenville Railroad Co. It conferred upon-the county no power to loan money. To pay for this subscription the commissioners were authorized to issue interest-bearing bonds, which the railroad company was required to receive as cash at par. This act, so far from contemplating that the company was to pay the interest upon these bonds, provided that the county commissioners should make provisions therefor as in other cases of bonds of the said county. It is therefore obvious that the legislature contemplated an exchange of the stock of the company ás a full equivalent for the bonds of the county, and that the county should occupy no other or better position than other subscribers to the stock of the road. It certainly did not intend that, as to dividends, the county shares should be preferred. When, therefore, the company contracted to-pay an annual interest of six per cent, on the county stock, for a period of thirty-two years, it certainly exceeded its authority. If such power existed, we have not been informed of it; and we need no more than repeat the rule, so often expressed in our books, that the powers of a corporation must be found in its charter, or arise by necessary implication therefrom.

This company was incorporated by a special Act of Assembly, approved March 29th 1849, subject to the provisions of the Act of February 19th 1849, commonly known as the General Railroad Act. This latter recited act not only does not confer the power contended for by the plaintiff below, but in express terms prohibits the exercise of any such power.

The 9th sect, provides that the “directors shall in no case” (in declaring dividends) “ exceed the net profits actually acquired by the' company, so that the capital stock shall never be impaired thereby.” In case of a violation of the provisions of this section, the directors are made individually liable for the amount of the capital stock so paid out. Now from the special verdict, we find that the company paid the accruing interest upon the county stock for the yeai’s 1854, 1855 and 1856. The road was then unfinished ; for from the same source we discover that in May 1856, the road was leased to King & Thompson for the term of twenty-one years, they agreeing to finish the road and pay to the stockholders thereof four per cent, per annum on $1,500,000; subsequently modified to forty per cent, on gross earnings. King & Thompson afterwards assigned to the Western Transportation Company, but neither of these parties have ever paid anything to the company. It is therefore quite certain that the interest paid on the county stock came out of the capital of the company, and it is equally certain that if we compel a further payment it must be drawn from the same source. The special verdict thus exhibits a contract prohibited by the statute, and it follows that it cannot be enforced: Fowler v. Scully, 22 P. F. Smith 456. And, as is said by Justice Agnew in that case, the argument that the state alone can call in question the legality of the act of the company has no place here.

Leaving, however, the Act of Assembly out of the question, there yet remains the fact that in thus contracting with the county for a bonus on its subscription, the directors of this company were acting without authority. Such being the case, the corporation was not bound. The prime object of the creation of this company was the building of a railroad, an undertaking in which the public was largely interested. It was to be built, if at all, from money subscribed to its stock. If, however, the money so raised must first go to the payment of interest upon these very subscriptions, it is obvious that it would soon be consumed and thus the main object of the organization defeated. Again, if the county of AUe-'i gheny was alone to receive this annual dividend, bonus or interest, as it may happen to be designated, the remaining shareholders might welkcomplaim that the contract is a fraud upon their rights. It is true that those shareholders who assented to the arrangement might be estopped from calling it in question, but as it could not affect such as did not assent to it, or those who subsequently subscribed, an estoppel could not be worked against the company: Bailey v. Gas & Coal Co., 19 P. F. Smith 340 ; 1 Redf. on Railways 617. This court sustained a similar subscription in the case of the Pittsburg & Connellsville Railroad Co. v. The County of Allegheny, 13 P. F. Smith 126, only on the ground of an Act of Assembly authorizing it, and though the contract, like that in controversy, stipulated for the payment of interest for thirty years on the bonds issued by the county in payment of its subscription, yet it was held that such interest was payable only for and not beyond the time specifically fixed by the act; that was until the completion of the road. Thompson, C. J., who delivered the opinion of the court, says : “ Without express authority or beyond the limits of authority conferred, we think the company had no power to bind its stockholders, who constituted the company, to pay the interest to the county of Allegheny for the period of thirty years or any other period.” This authority being full and to the point, we may rest upon it. In addition to this we may notice the fact that the county has no such peculiar equities as would evoke the doctrine of estoppel in its Tavor even were we in a position to apply it. The county received the same compensation for its subscription that others did. It can stand on no higher level and can ask for no greater consideration than its fellow shareholders. All got for their money or bonds just what the law contemplated they should get, viz.; shares of the company’s stock. If it turned out to be worthless as to one, it was worthless as to all, hence there is no reason why the county should be preferred to the individual shareholder. We have been cited to many authorities showing that the misuse or abuse of its corporate powers does not necessarily avoid its contracts made under such abuse of authority. These authorities are neither impugned nor doubted; they simply do not apply to the case under consideration, for it is not to be doubted but that not merely a corporation, but also any natural person, may repudiate a contract executed by an agent without authority. In the case in hand, the directors of the Pittsburg & Steubenville Railroad Company, in executing the contract with the county, acted ultra vires in that they agreed that the county shares of stock should bear interest, and having so acted, the company may well repudiate that contract.

The judgment of the court below is reversed.