Enterprise Ditch Company v. Moffitt

• Decision Date: 08 June 1899
• Docket Number: 8880
• Citation: Enterprise Ditch Company v. Moffitt, 79 N.W. 560, 58 Neb. 642 (Neb. 1899)
• Parties: ENTERPRISE DITCH COMPANY ET AL. v. JOSEPH MOFFITT ET AL
• Court: Nebraska Supreme Court

79 N.W. 560

58 Neb. 642

ENTERPRISE DITCH COMPANY ET AL. v. JOSEPH MOFFITT ET AL

No. 8880

Supreme Court of Nebraska

June 8, 1899

ERROR from the district court of Scott's Bluff county. Tried below before GRIMES, J. Affirmed.

AFFIRMED.

J. H Broady and F. H. Bentley, for plaintiffs in error.

References Commonwealth v. Dilwiler, 131 Pa. St. 614; Pfister v. Gering, 122 Ind. 567; Kent v Quicksilver Mining Co., 78 N.Y. 179; Hale v. Sanborn, 16 Neb. 1.

F. A. Wright and C. C. Wright, contra.

References: Atlantic Delaine Co. v. Mason, 5 R. I. 463; In re Long Island R. Co., 19 Wend. [N. Y.] 37; Bergman v. St. Paul Mutual Building Ass'n, 29 Minn. 275; Trustees v. Flint, 13 Met. [Mass.] 539; Reid v. Eatonton Mfg. Co., 40 Ga. 98; Great Falls R. Co. v. Copp, 38 N.H. 134; Hervey's Island R. Co. v. Bolton, 48 Me. 451; Anglo-Californian Bank v. Granger's Bank, 63 Cal. 359; Driscoll v. West Bradley & Cary Mfg. Co., 59 N.Y. 96; State v. Morristown Fair Ass'n, 31 Zabr. [N. J.] 195; People v. Detroit & P. R. Co., 1 Mich. 458; Williams v. Lowe, 4 Neb. 382; Paxton & Hershey Irrigating Co. v. Farmers & Merchants Irrigation Co., 45 Neb. 884; Lincoln Shoe Mfg. Co. v. Sheldon, 44 Neb. 279.

OPINION

HARRISON, C. J.

Six actions were commenced in the district court of Scott's Bluff county, in each of which it was sought to enjoin the sale by the Enterprise Ditch Company, a corporation, of some shares of fully "paid-up" corporate stock owned by the plaintiff in the suit because of the non-payment, by the holder, of certain assessments against said stock. The six suits were by stipulation consolidated and tried as one. Injunctions were allowed, and from the decrees appeals have been perfected for the ditch company, and the one decision here is to be applicable in all the cases. It was alleged in the petition, and admitted, "that the Enterprise Ditch Company was duly organized as a corporation under the laws of the state of Nebraska on or about the 7th day of March, 1889, and ever since has been a corporation under the laws of the state of Nebraska and doing business in Scott's Bluff county, Nebraska." A copy of the articles of incorporation was attached to each petition. Article 3 reads: "The general nature of the business to be transacted is to acquire, construct, operate, and maintain a canal taking water from the North Platte river, in said county and state, and diverting and appropriating water from said river sufficient to fill their said ditch at all times as may be necessary for the use of persons taking water therefrom and conducting through their said canal, and renting, leasing, selling, and otherwise disposing of water, water rights, or stock in said ditch to persons owning lands under said ditch, or to any other person or persons, in the discretion of the board of directors or trustees, for the purpose of irrigation, milling, manufacturing, domestic, or other as may be necessary to fully carry out the business for which the same is organized." The provision in relation to by-laws is as follows: "The duties of all officers shall be prescribed by the by-laws of said corporation. And the board of trustees shall have authority to adopt such prudential by-laws as they shall deem proper and expedient for the management of the affairs of said corporation, and not inconsistent with the laws of the state of Nebraska, for the purpose of carrying on the business within the objects and purposes of this corporation."

By statute it is provided: "Every corporation, as such, has power * * * to make by-laws, not inconsistent with any existing law for the management of its affairs." (Compiled Statutes, 1897, ch. 16, sec. 124.) In the by-laws adopted by the ditch company it is provided that "the board of directors shall exercise a general supervision over the affairs of the company. * * * The board shall hold regular quarterly meetings, the first Tuesday in December March, June, and September." "The board of directors shall at their first quarterly meeting make an estimate of the total cost of maintenance and levy an assessment for such an amount, subject to the call of the board of directors from time to time as the same shall be needed." It is further provided: "For non-payment of dues on any cash assessment. When any stockholder shall be in default of payment of any installment of assessment upon his stock, pursuant to any levy or assessment of the board of directors or trustees, for the period of thirty days after personal notice thereof or request to pay the same by the secretary, or after written or printed notice thereof or request to pay the same by the secretary, or after written or printed notice and demand therefor has been deposited in the post office properly addressed to such delinquent stockholder, the board of directors may, at any meeting, order that the shares of stock held by such delinquent stockholder, and all the right or interest of such stockholder therein, be sold by the president of the company at public auction, or at some certain time and place to be designated in such order, to the highest bidder for cash; provided, however, that notice of the time and place of such sale shall be published in some general newspaper in Scott's Bluff county, Nebraska, for four consecutive weeks just prior to such sale, proof of which publication shall be the affidavit of the publisher or foreman of such paper. Further, that the proceeds of such sale, over and above the amount due on such shares and all expenses incidental to such sale, shall be paid to such delinquent stockholder, and the treasurer of this company may, for the company, purchase the said shares at said sale for an amount not exceeding what shall be due from such stockholder to the company, or, instead of the sale mentioned, the board of directors may, after like notice to the delinquent stockholder, make an order that at a certain time and place the stock of such delinquent shall be canceled at such time and place mentioned in the said order. If said delinquent fail to pay the same, then it shall be lawful for the said board of directors to declare the same canceled, and from that date the said stock shall be subject to subscription and sale the same as though it had never been sold, and all money paid thereon shall be forfeited and absolutely belong to the...