Portland Dry Dock & Insurance Co. v. Trustees of Portland

• Decision Date: 21 June 1851
• Citation: Portland Dry Dock & Insurance Co. v. Trustees of Portland, 51 Ky. 77 (Ky. Ct. App. 1851)
• Parties: Portland Dry Dock and Insurance Company v. Trustees of Portland.
• Court: Kentucky Court of Appeals

51 Ky. 77

Portland Dry Dock and Insurance Company v. Trustees of Portland.

Court of Appeals of Kentucky.

June 21, 1851

Debts. Corporations. Taxes. Interest.

ERROR TO THE JEFFERSON CIRCUIT.

Guthrie and Ripley, for plaintiff.

Loughborough & Ballard, for defendants.

OPINION

MARSHALL JUDGE:

BY the last section of the act of 1836, to incorporate the Portland Dry Dock and Insurance Company (Sess. Acts, 1835-6 page 587), the sad company was required to pay to the city of Louisville an annual tax of fifty cents on each hundred dollars of their capital stock; and as the capital was $100,000, required to be paid up before the company should be organized or proceed to the business authorized by the charter, this tax amounted to $500 annually. By the seventh section of an act of 1844 (Sess. Acts, 1843-4, page 222), the Board of Trustees of the town of Portland, were empowered to collect and receive for each year thereafter, two hundred dollars of the annual tax laid on the Portland Dry Dock and Insurance Company; and so much of the act incorporating said company as directs the payment of an annual tax by said company to the city of Louisville, was so amended as to direct that in future said company should pay two hundred dollars of said annual tax to the Trustees of the town of Portland, and the residue thereof to the city of Louisville.

Case stated, and pleadings, and the judgment of the Circuit Court.

In April, 1847, the Trustees of the town of Portland, brought this action of debt against said company to recover the sum of $200, the tax alleged to be due to them and unpaid for the year 1846. The declaration refers to the act of incorporation, and the tax thereby imposed, and to the subsequent act granting to the Trustees of Portland $200, part of said tax, and stating that the capital stock of $100,000, had been subscribed and paid to the company, and that it had been fully organized and proceeded to exercise the powers and privileges conferred by the charter, avers that, by virtue of said acts the company became liable and bound to pay to the plaintiffs, as trustees, etc., for each and every year, the sum of $200, but has not paid to them the sum of $200, which they are so liable and bound to pay for the year 1846, etc.

To this declaration two pleas were filed, each of which was adjudged bad on demurrer, and the defendants saying nothing further in answer to the action, a judgment was rendered against them for $200, with interest, from the emanation of the writ.

In revising this judgment, the first question is on the sufficiency of the pleas. One of the pleas simply avers in general terms, that prior to June, 1846, the corporation of the Portland Dry Dock and Insurance Company, was dissolved by unanimous act of the corporation, and the capital withdrawn. The other plea relies substantially on the same fact, more circumstantially set forth. It avers, in effect, that the stockholders of the company, at their June meeting in 1845, resolved to wind up their business and to divide their stock, and the directors of the previous year were continued in office for another year, viz.: until June, 1846, for the sole purpose of liquidation, and the stock distributed among the stockholders, and the corporation dissolved and ceased to exist. This plea shows, by way of profert, the proceedings of the meeting of June, 1842, to which it refers, and by which it appears that said meeting received and unanimously confirmed a written authority and power of attorney, signed by all the stockholders, in which they express their desire to dissolve the corporation and close its business, and they appointed three named persons, or any two of them, their attorneys, in fact, to collect the funds and assets of the corporation, and pay them over to each proportionably, as fast and as often as collected, and giving them power to settle and adjust all claims pro and con, to sell and dispose of all property of the company, and to compromise and finally settle each and every transaction of said corporation, making use of the corporate name until each transaction is finally liquidated and closed. And the meeting of June, 1845, resolved accordingly.

Upon these pleadings the general question has been discussed whether a private corporation can at its own mere will dissolve itself by its own mere act. In England it seems to be the established law, that a corporation can not effectually dissolve itself by a surrender of its franchise unless the surrender be made to the king and accepted. Upon analogous principles the surrender in this country, should be made to and accepted by the Legislature, and it would doubtless be effectually evidenced by a repeal of the charter upon petition of the corporators. It is certainly desirable that there should be a legislative act prescribing a mode by which private corporations might be dissolved by the act of the corporators, so manifested as to be conclusive, at least against themselves. Even in the absence of such a statute, we are not prepared to say that a corporation purely private in its...