صور الصفحة
PDF
النشر الإلكتروني

dissenting opinion of the chief judge, which was concurred in by Judge Schumucker and the writer of this opinion, not only did not question the jurisdiction of the court of equity to grant such relief under proper allegations, but referred to a number of cases which sustain the right of a corporation, or its representative, to sue in equity, including Wilkinson vs. Dodd, 40 N. J. Eq., 123; 3 Atl. Rep., 360; Spering's Appeal, supra; Charitable Corp. vs. Sutton, 2 Atk., 400. It must therefore be admitted that in so far as this court has indicated its views on the subject, it is not in line with the New York cases, but with those adopting a contrary doctrine.

"There are many decisions elsewhere in which the courts have recognized the jurisdiction of equity in such cases. In Cockrill vs. Cooper, 86 Fed. Rep., 7; 57 U. S. App. 576; 29 C. C. A. 529, the Circuit Court of Appeals, through Judge Thayer, delivered a strong and convincing opinion on the subject, and referred to many authorities. In that case the suit was against a number of directors, and the personal representatives of others, whose terms of service were not identical. It was said that if a receiver must sue at law, it would not only require numerous actions, but 'very likely several separate actions would have to be brought against some of the directors, to comply strictly with the rules of procedure at law governing the joinder of parties;' and that 'it is also fair to infer from what is stated in the bill that the excessive loans therein complained of were inaugurated by one set of directors, and either continued, renewed, or enlarged by another, so that a suit brought against any one of the directors would probably involve an inquiry into the proceedings of the board of directors,

and into many of the financial transactions of the bank for the entire period during which its affairs are alleged to have been mismanaged.' In that case there was also the charge of declaring dividends in violation of the Revised Statutes, and it was said of that: 'An investigation into the merits of this charge will necessarily involve a critical inquiry into the financial condition of the bank on each of said occasions; and as this court held in Hayden vs. Thompson, 36 U. S. App., 361, 369; 17 C. C. A., 592, and 71 Fed. Rep., 60, that it is an inquiry which is peculiarly appropriate to a court of chancery, since an account of any considerable length or intricacy cannot be stated before a jury with that degree of fairness and accuracy which is necessary or at least desirable, in a judicial proceeding. The learned judge very forcibly showed why courts of equity are best adapted to adjusting such controversies as usually arise between receivers of insolvent corporations and their directors or managers, and added that 'in a court of law there is always a greater probability that the guilty will escape detection or that the innocent will be made to suffer for the wrongful acts of others.'"' 18

18 7 American and English Annotated Cases. Note to page 1121.

CHAPTER V.

POWERS AND LIABILITIES OF A CORPORATION.

SECTION 34.

POWERS IN GENERAL.

The powers belonging to private corporations fall into three general classes: (1) Those incidental to corporate existence; (2) those expressly conferred by statute or the charter of the corporation; and (3) those incidental to the powers expressly granted.

SECTION 35. POWERS INCIDENTAL TO CORPORATE EXISTENCE.

The following powers are held to necessarily belong to every corporation: (1) To have perpetual succession; (2) to sue or be sued, to receive and grant property by its corporate name; (3) to purchase and hold lands; (4) to have a common seal; (5) to make by-laws for its government. "These five powers are inseparably incident to every corporation, at least to every corporation aggregate; for two of them though they may be practices, yet are very unnecessary to a corporation sole, viz.: to have a corporate seal, to testify his sole assent and to make statutes for the regulation of his own conduct.” 1

The necessity of a distinctive corporate name is thus discussed by Blackstone: "When a corporation is erected a name must be given to it, and by that name alone it must sue and be sued, and do all legal acts, though a very minute variation therein is not material. Such name is the very being of its constitu1 Blackstone's Com., 474.

* 1 Blackstone's Com. 476.

tion, and though it is the will of the King that erects the corporation, yet the name is the knot of its combination, without which it could not perform its corporate functions." "The name of incorporation," says Sir Edward Coke, "is a proper name or name of baptism and therefore, when a private founder gives his college or hospital a name, he does it only as a godfather, and by that same name the King baptizes the incorporation." Some of the reasoning and illustrations in the above quotation sound strange and out of date at the present day, but the necessity for the name to every corporation is as great as ever.

The right of perpetual succession may be abridged by statutory provisions, or provisions in charters, limiting the life of a corporation to a certain specified period.

SECTION 36. POWERS EXPRESSLY GRANTED TO A

CORPORATION.

The express powers of a corporation are conferred upon it from two sources, from the general statutes governing corporation, and from the corporation charter. Such statutes and charter are the measure of the powers of a corporation, and a corporation can lawfully exercise only such powers as are therein conferred upon it.

Grants of power to a corporation are in general to be construed strictly against the corporation.

"The right of a corporation to do an act or make a contract is not always a question of law. What it may not do under some circumstances, it may do under others. It may carry on the business it is authorized to do in the usual and customary manner that business of the same nature is carried on by individuals.

'It is therefore,' says Mr. Jorawetz, 'impossible to decide abstractedly that acts of a particular description are within or without the chartered powers of a corporation. The right of a corporation to perform an act depends, in every case, upon all the surrounding circumstances, and facts can be conceived which would render almost any act justifiable.' He further observes (and it is an eminently sensible observation), that 'no rules can be framed which would be of any practicable value in determining cases of this character. The application of law to an individual case must always remain a matter involving the exercise of sound, practical judgment, and business experience.' 'Great caution,' he says, 'is therefore necessary in treating a decision that a corporation has or has not authority to do a particular act as a precedent to be followed in other cases.'"

Another general principle seems properly to require a statement before we apply the law to the circumstances surrounding the transaction now to be considered. The general rule in regard to the construction of a charter is that it is to be construed strictly against the grantee; that all which is not clearly granted, either expressly or by reasonable implication, is to be held against the corporation.

This rule does not apply, however, in cases where a corporation is seeking to repudiate a contract under which it has received benefits.

"All grants, even grants of corporate franchises, are construed strongly in favor of the government, and against the grantee. So when the State challenges the action of one of its corporate creations, it may insist on clear warrant for such action. It may say:

Tod vs. Kentucky Union Land

Co., 57 Fed. Rep., 523.

Vol. VIII.-10.

« السابقةمتابعة »