Omaha Law Library Association v. Connell

• Decision Date: 09 June 1898
• Docket Number: 8166
• Citation: Omaha Law Library Association v. Connell, 75 N.W. 837, 55 Neb. 396 (Neb. 1898)
• Parties: OMAHA LAW LIBRARY ASSOCIATION v. WILLIAM J. CONNELL
• Court: Nebraska Supreme Court

75 N.W. 837

55 Neb. 396

OMAHA LAW LIBRARY ASSOCIATION v. WILLIAM J. CONNELL

No. 8166

Supreme Court of Nebraska

June 9, 1898

ERROR from the district court of Douglas county. Tried below before AMBROSE, J. Reversed.

REVERSED AND REMANDED.

Charles W. Haller and Brome, Burnett & Jones, for plaintiff in error.

William F. Gurley, contra.

OPINION

RAGAN C.

The Omaha Law Library Association sued William J. Connell in the district court of Douglas county to recover certain dues imposed upon him as a stockholder of said corporation by the by-laws thereof. To review the judgment of the district court dismissing the association's action it has filed a petition in error in this court.

1. The undisputed facts in the case are as follows: The library association is a corporation created and subsisting under and by virtue of the general incorporation law of the state. Its capital stock is fixed at $ 10,000, divided into shares of $ 100 each. Connell was a subscriber for one or more shares of this stock, has paid in full for the stock subscribed, and is a stockholder of the corporation, and the dues for which this suit was brought are unpaid. Article 1 of the articles of incorporation declares: "The undersigned do hereby associate ourselves together and declare that we together with our associates, successors, and assigns, are and shall be a corporation under and by virtue of the statutes of the state of Nebraska, by the name and style of The Omaha Law Library Association."

Article 2: "The object and purpose of the said corporation shall be to establish and maintain a law library in the city of Omaha, in Douglas county, in the state of Nebraska, for the use of the members of said association."

Article 6 of said corporation provides, among other things: "The board of directors shall have power to provide for the forfeiture of the stock of the association for failure for a period of not less than one year of the owner of any share or shares to pay the annual dues assessed thereon."

Article 11: "By-laws may be made by the corporation not inconsistent with law or with these articles."

The by-laws, section 24, provide: "To meet the current expenses of maintaining the library the following dues shall be paid to the treasurer, or by his direction to the librarian. Attorneys residing in this county shall pay annual dues at the rate of $ 15 per annum in advance. * * * Attorneys not residing in this county and not being stockholders may have all the privileges of the library on paying in advance $ 5 for each and every month."

Section 26 provides: "No attorney residing in this county shall be entitled to the use of the library unless he owns at least one share of its capital stock paid up in full."

In support of the judgment of the district court it is insisted that the dues sued for herein are assessments levied or attempted to be levied by the by-laws upon the capital stock of the corporation; that as Connell has fully paid for all the stock for which he subscribed; that as the statute under which the corporation was organized does not expressly authorize the assessment of the stock, and that as the articles of incorporation--the charter of the corporation--do not expressly authorize the assessment of the stock of the corporation, therefore the by-law imposing the dues is void. The correctness of the conclusion drawn by counsel for Connell, that this by-law is void, may be conceded if the dues provided for therein are assessments upon the stock of the corporation within...