Bonaparte v. Baltimore, H. & L.R. Co.
| Decision Date | 17 February 1892 |
| Citation | 23 A. 784,75 Md. 340 |
| Parties | BONAPARTE v. BALTIMORE, H. & L. R. R. CO. ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Baltimore county, in equity.
Bill by Charles J. Bonaparte against the Baltimore, Hampden & Lake Roland Railroad Company and others to enjoin the construction of defendant company's road. From an order denying the injunction, plaintiff appeals. Reversed and remanded.
C.J. Bonaparte, Wm. Reynolds, and Wm. S Keech, for appellant.
F C. Slingluff and Steele, Semmes & Carry, for appellees.
By chapter 284 of the acts of the general assembly of 1872 was passed the act entitled "An act to incorporate the Baltimore, Hampden & Lake Roland Railroad Company." The first section of the act names certain persons as commissioners to take subscriptions to the capital stock of the company, and, in case of the death, resignation, or refusal to serve of any of the persons named as commissioners, a majority of the remaining commissioners were given authority to appoint others. By the second section of the act the subscribers to the stock, and their successors and assigns, are declared incorporated into a company by the name of "Baltimore, Hampden & Lake Roland Railroad Company," with perpetual succession under that name, with power of holding, purchasing, and incumbering property for the purposes of the corporation. The third section makes the capital stock of the company to consist of shares, not exceeding 2,000 in number, of the value of $50 per share $5 of which was to be paid at the time of subscription and the residue in such installments as the president and directors should determine. By the fourth section, as soon as 500 shares should be subscribed, the commissioners to take the subscriptions were authorized, by publishing notice as prescribed, to call a meeting for the election of seven directors, who, on being elected, should elect a president, for whose qualification the fifth section provides. The sixth section gives the company thus incorporated power to construct a railroad with one or two tracks, and necessary sidings, for the transportation of travelers or freight by horsepower, and gives the company the exclusive use of any streets or county roads over which they may wish to lay their tracks between Boundary avenue and Lake Roland: provided said track or tracks are constructed in such manner as not to interfere with the travel over said streets or roads. The seventh section provides for the condemnation of right of way, and estimating damages and benefits. The eighth section prescribes the rate of fare, not exceeding five cents per mile, or for the fraction of one. The ninth section authorizes the borrowing of money to the extent of $25,000. The tenth authorizes the making of by-laws, rules, and regulations, and the appointment and employment of officers. The eleventh section provides "that said company shall commence said railway within three years from the passage of the act, and complete the same in ten years." By the twelfth and last section the act is made to go into effect upon its passage, and the right to alter, amend, or repeal is reserved to the legislature. The appellant is a property owner residing on Roland avenue, which is opened as a public avenue or highway of the width of 60 feet, part of his property, and has filed his bill for an injunction restraining the appellees from the construction of their road, which has been begun. He charges that the tearing up and obstruction of the avenue as is proposed is without lawful authority, and will be an unlawful obstruction of the appellant in going to and from his premises. He avers that what is being done is not for the purpose of using horses for the road, but with the design of using electricity as a method of propulsion. He sets up in his bill, and contends in argument, that the act of assembly, relied on by the appellees as an act of incorporation, is void, because it is in conflict with the provisions of article 3, § 48, of the constitution, which prohibits the granting of charters to corporations when there is a general law under which they may be formed, as appellant contends that there is; (2) that it was not accepted in time to confer on the corporation the powers which are claimed for it, or to create a corporation at all; and (3) that if originally accepted in time, the charter gives no right to the corporation to lay down their tracks in the highway without the consent of the county commissioners, which has not been obtained. The appellees deny all those several propositions, and the court below agreed with the appellees in reference to them, and refused the preliminary injunction which was asked, and from that refusal this appeal was taken.
The appellees have moved to dismiss the appeal because it is contended that this particular case does not fall within the provisions of section 29 of article 5 of the Code. [1] When the bill was filed, and preliminary injunction was asked for, instead of granting the injunction at once, and outright, the judge set a day for hearing, and, until that hearing could be had, the judge passed a restraining order. The contention of the appellees is that this restraining order was a preliminary injunction, and the order of the court passed after the hearing which was appointed was the dissolution of the injunction already granted. When the court passed the order setting a day for hearing, and meanwhile restraining the appellees till the hearing, it is very evident that the court was not acting finally on that application for preliminary injunction. The court wanted opportunity to consider whether a case was made for preliminary injunction, and therefore ordered a hearing on the application made by the bill. When that hearing was had, the preliminary injunction was refused, and the order refusing the same is the subject of the appeal. We think it does fall within the statute, and that appeal was properly prayed and granted. The motion to dismiss must be overruled.
For the purpose of deciding this case we need not consider the question whether the act of assembly, under which the appellee claims corporate powers, was constitutionally enacted. We may assume, without so deciding, that it was for, conceding that it was lawfully passed, we are of opinion that the appellee never acquired lawful corporate existence under it. If it did not acquire corporate life under that act, the injunction should have gone. The statute appointed commissioners to take subscriptions for the stock of the road it authorized to be built, upon specified conditions, and within certain limitations as to time. Those commissioners were not declared to be incorporated. They were the mere agents of the state to offer the charter to subscribers willing to accept it as offered. State v. Bull, 16 Conn. 179. Those who should become subscribers for stock of the corporation intended to be formed were, by the second section of the act, declared incorporated. The act went into effect on the day of its passage, and made a corporation possible; but the stock had to be taken as prescribed before there would be incorporators to accept the charter offered to them. Subscribers to the extent of $25,000, with $5 per share actually paid in, were necessary to justify an organization as a corporation. Before there could be an acceptance of the charter, and its conditions and limitations, subscribers to the extent mentioned were necessary. They were incorporated, and not the commissioners. The latter, being the state's agents to make the offer, could not accept it. They need not be stockholders, and might never be such; and until they should become subscribers for stock they could have no voice in the matter. Confessedly, no stock subscriptions were made until September, 1891, which was more than 19 years after the passage of the act tendering the charter upon the terms and limitations mentioned in it, and more than 9 years after the time limited for completing the road. Construing the act, as is our first duty, we think it intended to offer the corporate existence and corporate powers mentioned in the act to such stock subscribers as would accept the offer on the conditions annexed. The commissioners named were charged with a specific duty. They could do nothing which the act did not authorize them to do; they could offer nothing to subscribers but what was given them to do; and it was their duty to so discharge their functions that the conditions of the offer might, by possibility, be complied with. Certain limitations were imposed in the act. The road was to be commenced within three years, and was to be completed within ten years, from the passage of the act. The commissioners to take subscriptions must act, therefore, within such time that subscribers to the stock, who were to be the corporation, could accept the conditions annexed, and could make the effort, at least, to do what was authorized. When, therefore, the commissioners delayed action until the limitations imposed by the act had fully attached, and the time limited for beginning and finishing the road had long passed, it would seem to be clear that the powers of the state's agents were at an end, and their power must be enlarged by legislative action to justify their doing anything under the act. They had no right to offer to subscribers anything but the charter, with its conditions; and when the conditions became impossible of compliance, before the state's agents offered it to anybody, it is clear that they were functi officio, and the act itself was no longer operative. It perished under its own limitations, and required legislative action to again vitalize it. The legislature was influenced by what was...
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