Mylrea v. Superior & St. C. Ry. Co.

• Decision Date: 19 June 1896
• Citation: 67 N.W. 1138,93 Wis. 604
• Court: Wisconsin Supreme Court
• Parties: MYLREA, ATTY. GEN., v. SUPERIOR & ST. C. RY. CO.

93 Wis. 604

67 N.W. 1138

MYLREA, ATTY. GEN.,

v.SUPERIOR & ST. C. RY. CO.

Supreme Court of Wisconsin.

June 19, 1896.

Application by W. H. Mylrea, attorney general, for leave to file an information in the nature of quo warranto against the Superior & St. Croix Railway Company, and for process against it. Denied.

This was an application by the attorney general, upon an order requiring the defendant company to show cause why an order should not be made granting leave to him to file an information in the nature of quo warranto against said company, and for process against it, etc. The proposed information sets out, in substance, the incorporation of the company by chapter 326, P. & L. Laws 1870, as amended by chapter 2, P. & L. Laws 1871, and chapter 328, Id.; that it accepted its charter in February, 1871, and in that year located that portion of the line of its road authorized by its charter extending from Superior, Wis., to the Minnesota state line, acquired some right of way, and entered into a contract for the construction of said road with contractors, who commenced the work of construction, and prior to May, 1872, did certain work specified, when the construction of said road was stopped and abandoned, and not afterwards prosecuted, and no part of its road had been completed or operated; that August 31, 1880, the company held a meeting, at which a full board of directors was elected, who chose a president and other officers; that no other meeting of stockholders was held until October 16, 1895, when a full board of directors was elected, who chose a president and other officers of the company; that it had suspended its lawful and ordinary business for one whole year and over, to wit, for 15 years, and had thereby surrendered the rights, privileges, and franchises granted to it by the said charter and the acts amendatory thereof, and that it ought to be, and should by right be, dissolved; that, notwithstanding the abandonment and surrender of said franchises, the said company had, through its stockholders, elected a board of directors as aforesaid, and they a president and other officers, and had usurped, and did still usurp, the rights, privileges, and franchises aforesaid, and gave out and threatened that, in the exercise thereof, it would operate railroads within the state, and issue stocks and bonds thereon, and carry on the business of a railroad corporation as fully to all intents and purposes as if the said abandonment and surrender had not occurred, and as if no ground for judicial forfeiture existed, to the great damage and prejudice of the people, etc. The said company filed an affidavit of Hiram Hayes, its secretary, by way of showing cause, to the effect that he was one of the corporators named in the original charter; that on the 4th of February, 1871, at a meeting of the corporators, by resolution, a stock subscription book was opened, and a committee appointed to receive subscriptions, and stock was subscribed by 10 different persons, he (the said Hayes) being one of the subscribers; that 10 per cent. of the stock was called and paid, and directors and officers were elected; that numerous meetings were afterwards held, a full set of by-laws and a corporate seal adopted, and various other business transacted; that the company, in the year 1871, located that portion of the line of its road authorized by its charter extending from Superior to the state line of Minnesota, and acquired by deeds of conveyance a right of way for the same; that in 1871 the company entered into a contract for the construction of its road; that the contractors did considerable grading thereon, and provided ties and other timber for use in construction, but they stopped work thereon in May, 1872; that on the 31st of August, 1880, there was an annual meeting of the stockholders, when nine directors were elected to hold until their successors were elected and qualified, and they elected a president, vice president, secretary, and treasurer, but no other election of directors was held until October 16, 1895, when, additional stock having been subscribed and paid in, a full board of directors was duly elected; that deponent, from the organization of the company until the election of said board of directors and officers, in 1895, was continuously the secretary of the company, having in his custody the books, records, and corporate seal, and its office, from its organization, had been in the office of the said secretary in the city of Superior; that the company, while it transacted no business in the way of constructing and operating a railroad between 1880 and October 16, 1895, was not insolvent, and owed no indebtedness whatever, and there was due it upon its original stock subscriptions 90 per cent., which had since been called and paid in; that it was not the intention of the defendant company to surrender its franchises or forfeit the same prior to the 16th of October, 1895; that upon the new stock subscribed in October, 1895, the par or face value was called by the board of directors, and paid in to the treasurer of the company; and it was insisted that the legislature, at its session in 1895, had waived the ground of forfeiture alleged, and all grounds of forfeiture then existing against the company, by the enactment of chapter 244 of Laws of that year, amending said charter and said several acts amendatory thereof. In an unverified statement, by way of showing cause, signed by the attorneys of the company, it was insisted, among other things, that the company had accepted the amendments to its charter by the act of 1895, and that it was exercising, and intended to exercise, the privileges, rights, and franchises conferred upon it by its charter and the amendatory act of 1895, and to acquire, by purchase, construction, and otherwise, the railroads and general routes designated in the act of 1895, and to operate the same within and without the state, and to issue its stock and bonds thereon, as authorized by said act. By the original charter, the company was authorized to survey, locate, and from time to time alter, change, and relocate so as not to materially change the route, and to construct, maintain, and operate a railroad, with one or more tracks or lines, from some convenient point on the west shore of the Bay of Superior, or on the south shore of the Bay of St. Louis, in the county of Douglas, running thence southerly, through the counties of Douglas, Burnett, Polk, St. Croix, and Pierce, via St. Croix Falls and Hudson, to Prescott, with a branch or extension running westerly from the above-designated place of beginning, to such point on the Minnesota boundary, north of the Nemadji river, as might be deemed desirable by the directors of said railroad company. The company was authorized to have a capital stock of $5,000,000, and to connect its railroad with other railroads, and operate the same in such manner as should be agreed on; and any company having a railroad built, or partly built, running in the direction of the line of railroad so authorized to be built and operated, was authorized to make sale or lease thereof, with its franchises, etc., to the said Superior & St. Croix Railroad. By the act of 1895, the company is authorized “to extend its road westward from the Minnesota state line, upon such route or routes as its board shall adopt, to such point or points on the Pacific coast as such board shall select, and from said point or points in Douglas county easterly upon such route or routes as it shall adopt, to or near Ashland, in the county of Ashland, in Wisconsin, and thence, by such route or routes as such board shall select, to such point or points in the state of Michigan as said board shall select, and also from such point or points in Douglas county, upon such route or routes as said board shall adopt, through the counties of Douglas, Burnett, Polk, St. Croix and Pierce, or any of them, to Prescott on the Mississippi river, with a branch from some point in one of said counties, to be selected by said board, to St. Paul and Minneapolis, Minnesota, or either of said places; also from some point or points in said Douglas county, or from some point to be selected by such board, on any railroad or railroads which the said company is or hereafter may be authorized to construct or otherwise acquire, upon such route or routes as said board shall adopt, through the states of Wisconsin and Illinois, to or into the city of Chicago in the county of Cook in said last named state.” Laws 1895, c. 244, § 1. And the said company is further authorized and empowered “to survey, locate, construct and acquire, by purchase or otherwise, and to equip, maintain and operate, and perpetually have, use, possess and enjoy branch lines of railroad from its main line or lines, into and through any state or territory of the United States, or extending into or lying within the dominion of Canada, or any portion or province thereof.” Id. And it was authorized to exercise the power of eminent domain for the acquisition of lands, right of way, etc., to the extent and in the manner provided by Rev. St. Wis. §§ 1845-1856, inclusive. To accomplish these purposes, it is authorized to borrow money, issue notes, bonds, or debentures, and execute mortgages or deeds of trust on any or all of its property and franchises; and it is authorized to acquire and hold and guaranty stocks and bonds of other corporations.W. H. Mylrea, Atty. Gen., in pro. per.

John C. Spooner, for defendant.

PINNEY, J. (after stating the facts).

1. It is settled in this state, as well as in others in which a similar statute exists, that the suspension by a corporation of its ordinary and lawful business for one whole year, as the language of the statute itself imports (Rev. St. § 1763),¹ does not ipso facto dissolve the corporation, but furnishes a cause for its dissolution by the judgment of a competent court. Sleeper v. Goodwin, 67...