Goshorn v. Board of Supervisors , 1 W. Va. 308 ( 1865 )

Brown, J.

The first question to he considered is, is the Hempfield Railroad a corporation within the meaning of chapter 61, and sections 38 to 43 of the Code of 1849? No particular form of words is necessary to create a corporation : Angelí and Ames on Corporations. In this case it was not the creation of a new corporation, but the conferring of corporate powers and privileges by Virginia upon a Pennsylvania corporation already existing. This was done by the act of March 14th, 1851, and as effectually done, for every purpose within the object and intent of that act, as if it had incorporated the same persons anew for that purpose. It contemplated the same securities to the citizens of Virginia as if the act had created a hew corporation for the purpose. It was really a great advantage gained to confer the powers and privileges requisite to accomplish the work in question, instead of creating a new company for the same purpose, because the right of way, powers and privileges vested by Pennsylvania in the Hempfield company, were thereby secured; and the extension and completion of the road more certainly effected. To make a railroad to the Pennsylvania line, was not the sole object in view, for that would be worse than dead capital, as its proceeds would not keep it up. It was absolutely essential that it should be made further, and that could not be done without the aid and consent of the other State, which could scarcely have been secured while the Hempfield company was in the field; but by conferring the powers and privileges requisite, upon the Hempfield company, the object was at once accomplished, and foreign and material aid secured. Such was precisely the case with the Baltimore and Ohio railroad company, and though the act conferring on that company the powers and privileges requisite to effect the object in view, i. e. the construction of that important line of railway through, the State, was somewhat more full and particular, yet it is believed that the act of March 14th, 1851, conferred all the powers and privileges requisite to effect the end in view to wit: the construction of the railroad through the State, as effectually as did the- Baltimore and Ohio act. And the court of appeals in 12 Grat. held the Baltimore and Ohio company to be a Virginia corporation. It is therefore held, 1st, That the act of March 14th, 1851, conferred upon the Hempfield company such rights and privileges as to make it a corporation of this State within the meaning of the sixty-first chapter of the Code of Virginia, 1849, and therefore competent to receive the subscriptions to its stock by Ohio county as provided in said sections; 2nd, That the subscriptions by the county court of Ohio county, and the bonds executed in pursuance thereof in payment of said subscriptions, are valid and binding, because the court had authority to do so; and any irregularity in the manner of'executing that power is foreclosed by the judgment of the court and the execution of the bonds.

BERKSHIRE, President.

The decision of this case is important on account of the amount involved, and also, because, as we are informed, it is to close a controversy between the numerous bond holders and Ohio county, of many years standing.

The defendants resist the payment of these bonds, upon the ground that the iate county court of said county had no competent authority to make subscriptions to the stock of the Hempfield railroad company; and, first, because it is not a Virginia corporation within the meaning of the 61st chapter of the Code of Virginia of 1849; and, second, that if it is such a corporation, yet still, the powers conferred on the county court of Ohio county have not been carried into effect in the mode prescribed in said chapter, but was departed from in many essential particulars.

As to tbe first objection. No particular or precise form of words, it will be found, is necessary in tbe creation of a corporation, but it may result from implication and intendment. It is tbe grant of certain powers and privileges and tbe imposition of tbe necessary restrictions, wbicb constitute tbe main, elements of a corporation, and as it is always a question of intention, tbe formal words, “ erect, establish, incorporate,” &c., usually found in tbe acts of incorporation are not deemed essential. And it bas accordingly been beld in at least one of tbe States (Arkansas,) that an act of tbe legislature creating a bank by-name, and putting tbe funds under tbe control of certain designated persons without any express words of incorporation, was sufficient to constitute it a corporation, tbe powers, &c., conferred on them for tbe purpose, says tbe court, cannot exist without a corporation: Angelí and Ames on Corporations, 64, 65 and 66.

Applying these general principles to our case, I think there can be no doubt but tbe act of tbe 14th of March, 1851, constituted tbe Ilempfield railroad company a corporation. But if it were left at all in doubt, the case of the Baltimore and Ohio Railroad Company vs. Gallahue’s adm’r, 12 Gratt., 655, is, I think, conclusive on tbe question. The acts authorizing tbe two companies to construct their respective roads through tbe territory of Virginia, it seems to me, are, in every essential respect, very similar.

Tbe act of tbe 8th of March, 1827, authorizing tbe Baltimore and Ohio company to construct their work through Virginia, recites that tbe company bad theretofore been duly incorporated by tbe legislature of tbe State of Maryland, and sets out tbe act in hcec verba, and then grants to tbe company all tbe rights, powers, privileges, &c., in Virginia, which it derived under tbe act of tbe corporation of Maryland, and subjects it to all tbe duties, penalties and restrictions imposed by that act, and reserves to tbe State of Virginia and her citizens tbe same rights, privileges and immunities wbicb are reserved to tbe State of Maryland or her citizens.

The act of the 14 of March, 1851, authorizing the Iiemp-field Railroad Company to continue and construct their road through Ohio county in Virginia, also recites the fact that said company had been previously duly incorporated by an act of the legislature of the State oí Pennsylvania, and without reciting that act, provides that the said company, as-to all their rights, property, franchises, powers, duties and obligations (terms applicable alone to a corporation and not to a private company, within the State of Virginia,) shall be governed by, and subject to, all the provisions of the Code of 1849.

Now it is not the recital in detail, merely, of the act of incorporation by the legislature of the State of Maryland, contained in the act of the 8th of March, 1827, which constituted the Baltimore and Ohio company a Virginia corporation, but it was the “grant of the powers,” &e., and the imposition of the necessary restrictions which follow this-recital which had that effect.

In delivering the opinion of the court in the case of the Baltimore and Ohio Railroad Company vs. Gallahues’ adm’rs, before cited, judge Allen, after referring to the last mentioned act, says, “ the company, under this law, is a Virginia corporation and its powers within the territory of Virginia are derived from the grant contained in the Virginia law.”

And again, he remarks, that, “throughout its whole course vast expenditures would be necessary, in the construction, preservation and working of the road; innumerable contracts would be entered into, controversies would necessarily arise out of the contracts, acts and omissions of the company and its agents; and it would be a startling proposition if in all such cases, citizens of Virginia and others should be denied all remedy in her* coui’ts for causes of action arising under contracts and acts entered into or done within her territory; and should be turned over to the laws of a sister State to seek for redress. Such a construction would give the company almost immunity for its contracts and acts over most of the road, and would exempt its property in the territory of Virginia from all liability to its creditors; for process of execution from tbe courts of Maryland could not avail in Virginia.”

Now this reasoning it appears to me, applies in all its force to the Hempfield railroad company; for although a foreign corporation, in some oases, might institute and prosecute suits in this State, yet it is certain that it could not be sued within the State. I conclude, therefore, that the act of the 14th of March, 1851, constituted the said Hempfield railroad company, a domestic or Virginia- corporation, and that the legislature did not intend otherwise, by committing the absurdity of requiring said company to operate within the territory of Virginia as a private-company merely, and on the other side of the State line as a corporation.

"We come to the second objection, namely, the various alleged irregularities in the execution of the powers vested in the county court of Ohio county-.

The general rule, according to the numerous authorities cited and relied on by the counsel of both parties to this controversy, certainly is, that a party acting under a power must pursue the power with much strictness, and where the mode or manner of executing the power is indicated in the act or instrument creating the power, the mode must not be departed from in any essential respect. From a careful examination of these authorities, hoivever, I am of opinion that there was no substantial variance or departure from the powers vested in the county court in issuing the bonds in controversy — certainly none such as would, in my judgment, justify us in holding them void in the hands of bom fide, holders.

The acts conferring the authority, it will be seen, contain 'no restrictions on the power of the court to subscribe the stock to a certain amount nor on the manner of making it, or the mode of payment. But the only restrictions found in the acts are as to the mode of levying taxes, (and the annual amount,) for the payment of such stock. This latter question, however, is not now before the court and it would, therefore, be improper to express an opinion upon it.

The company, as I think, sufficiently signified its accep-tanee of the charter when it took the subscriptions to its stock and received the bonds issued in payment of the same. I tbink the petitioners are entitled to the writ of peremptory mandamus prayed for, and the same must be awarded.

Writ granted.

Judge Harrison having declined to sit, as before noticed, the cases were heard and determined by the two remaining judges tohose opinions are just given.