Erie and Waterford Plank-Road Company v. Brown

• Decision Date: 01 January 1855
• Citation: 25 Pa. 156
• Parties: The Erie and Waterford Plank Road-Company versus Pilgrim F.J. Brown.
• Court: Pennsylvania Supreme Court

25 Pa. 156

The Erie and Waterford Plank Road-Company versus Pilgrim F.J. Brown.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Erie county.

Babbitt and Gunnison, for plaintiff in error.—The Act of incorporation provides that on the opening of the books, a specified amount of hand-money shall be paid, to the commissioners on subscriptions to the stock when made, and the remainder to the treasurer of the corporation as soon as organized.

The commissioners could not enlarge the subscription after certifying the amount and names to the governor to obtain the charter; but after the charter was obtained, and the company organized, as provided in the 2d section of the Act, the company had the power of enlarging the stock by "new subscriptions, in such manner and form as they think proper." And the company, when organized, are nowhere required to exact hand-money, nor are subscribers bound to pay it.

The defendant having acted as a corporator at the meeting of stockholders, and voted, was estopped from denying his liability: Clarke v. Monongahela Navigation Company, 10 Watts 364.

Marshall, for defendant.—The proviso in the 1st section of the Act requires payment of $1 in hand at subscription; and there is nothing to take the case out of the principle decided in the Hibernia Turnpike Company v. Henderson, 8 Ser. & R. 219: and see 14 Ser. & R. 434.

The opinion of the Court was delivered by WOODWARD, J.

The error into which the learned judge fell consisted in not distinguishing between a subscription of stock made on the books of the commissioners before charter granted, and one made on the books of the company after its full organization. It was alleged, and we are to take it as true, that the defendant's subscription was of the latter sort; but this was ruled to be an unimportant circumstance, for that the payment required to be made at the time of subscribing, by the proviso of the 1st section of the general law of 1849, relating to turnpike and plankroad companies, extended to all the original shares authorized in the special Act incorporating this company. The consequence of this doctrine was, that the subscription, though made to the company and not to the commissioners, was void for the want of a payment down at the time of subscribing.

We cannot concur in the opinion of the learned judge. The commissioners were ministerial officers acting under a special authority, and were bound to pursue it strictly. The proviso of the 1st section of the Act of 1849 required the attending commissioners to receive, from every person offering to subscribe, a payment in hand of not less than one dollar — a plain duty, which a special agent had no power to dispense with — and a subscription made without such payment was consequently void. It conferred no rights on the subscriber, and neither the commissioners nor the future company could enforce payment by action: 8 Ser. & R. 219.

But the Act of 1849 provides for chartering the company, where twenty persons or more have subscribed ten per centum of the capital stock; and, from the moment of the organization of the company, the duties and powers of the commissioners, in...