Boston Rubber-shoe Co. v. Boston Rubber Co.

• Decision Date: 20 June 1889
• Citation: 21 N.E. 875,149 Mass. 436
• Parties: BOSTON RUBBER-SHOE CO. v. BOSTON RUBBER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 436

21 N.E. 875

BOSTON RUBBER-SHOE CO. v. BOSTON RUBBER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1889

COUNSEL

A.A. Ranney and W.S. Rogers, for petitioner.

George Putnam and W.L. Putnam, for respondent.

OPINION

W ALLEN, J.

To give the court authority to act under Pub.St. c. 186, § 17, the petition must show that the respondent, in bearing the name "Boston Rubber Company" as its corporate name, is in the exercise of a franchise not conferred by law, and thereby injures, or puts in hazard, some right or interest of the petitioner. The petition shows that the respondent was incorporated under St.1870, c. 224; and a copy of a certificate, in due form as prescribed by the statute of the incorporation of the respondent, is annexed to the petition. By the terms of the statute, this has the force and effect of a special charter and is conclusive of the organization and establishment of the corporation. Section 11. The respondent does not contest this, but contends that the franchise to bear the corporate name is distinct from the franchise to be a corporation, and that the certificate is not conclusive as to the former though it may be as to the latter. Without considering whether a corporation can exist under the statute without a corporate name, and whether any proceedings against it for being incorporated by a name which it had no right to assume, should not be for a forfeiture of its whole franchise, as unlawfully obtained, we think that the statute intended that the certificate should be conclusive of the right to the corporate name, and gave a franchise to bear the name, which can no more be impeached by private persons than can the franchise to be a corporation; and that, in bearing the name, the respondent was exercising a franchise conferred by law. See Goddard v. Smithett, 3 Gray, 166, and Rice v. Bank, 126 Mass. 300. The statute (section 1) provided that persons associating together by an agreement in writing, such as is described in the statute, with the intention of becoming a corporation for certain purposes, "shall become a corporation upon complying with the eleventh section of this act." Section 7 prescribed what things the agreement should set forth, among other things the name by which the corporation should be known. Section 8 provided that "any name may be assumed for such corporation, which shall indicate that it is a corporation, and which is not previously in use by an existing corporation or company; and the name assumed in the agreement of association shall not be changed but by act of the legislature." It further provided that, in the cases of corporations organized for certain purposes, certain words should form part of the name. Section 11 provided for a certificate of incorporation under the seal of the commonwealth, which "shall have the force and effect of a special charter, and be conclusive evidence of the organization and establishment of such corporation." By earlier statutes, persons associating by agreement in writing for certain purposes, and complying with the provisions of the statutes, could become a corporation under any name not previously in use by any other corporation or company. These statutes required that there should be an organization as a corporation, and that a sworn certificate of its officers, containing various particulars mentioned, should be published in newspapers, and deposited with the secretary of the commonwealth. Gen.St. c. 61; St.1851, c. 133. The eleventh section of St.1870 was new. It provided that a sworn certificate of the officers, containing a copy of the agreement and of the record of organization, should be submitted to the commissioner of corporations for his examination, and he was authorized to require other evidence if he thought necessary. If it appeared that the requirements of the statute had been complied with, he was to certify that fact with his approval of the certificate. The certificate with his approval indorsed was to be filed with the secretary of the commonwealth, who was to issue the certificate of incorporation in a form presented. He was also to make a record of the certificate, and a copy of the record was made evidence. Section 12 provided that corporations, organized under former general acts, might, by complying with the provisions of the section, receive a certificate of the same effect as that provided for in section 11. The legislature plainly intended to require that the certificate provided for by section 11 should be procured, and that it should be a substitute for the evidence of compliance with the provisions of the statute that was required under former acts; and that, in a case within the purview of the statute, the certificate should be conclusive, as to private persons, of the right to the corporate existence by the designated corporate name. The question whether the franchise was improperly obtained or improvidently granted may arise in proceedings for a forfeiture in behalf of the public, but is not open in proceedings by a private person under the ...