State ex rel. Green Bay Gas & Elec. Co. v. Minahan Bldg. Co.

• Decision Date: 19 November 1909
• Citation: 141 Wis. 400,123 N.W. 258
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. GREEN BAY GAS & ELECTRIC CO. v. MINAHAN BLDG. CO.

141 Wis. 400

123 N.W. 258

STATE EX REL. GREEN BAY GAS & ELECTRIC CO.

v.MINAHAN BLDG. CO.

Supreme Court of Wisconsin.

Nov. 12, 1909. Dissenting opinion, Nov. 19, 1909.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by the State, on relation of the Green Bay Gas & Electric Company, against the Minahan Building Company. From an order sustaining a demurrer to the complaint for want of facts sufficient to constitute a cause of action, relator appeals. Affirmed.

This is an appeal from an order sustaining a demurrer to the complaint for want of facts sufficient to constitute a cause of action. The complaint alleges, substantially: That the relator is a public utility corporation duly organized under the laws of Wisconsin and owning and operating a gas, electric light, and power plant having its principal office in Green Bay, Wis., and engaged in the business of furnishing gas and electric current for lighting, power, and other purposes to the city of Green Bay and its inhabitants, and as such is a freeholder and taxpayer in said city; that the defendant “is a pretended corporation purporting to have been organized on the 11th day of February, 1907, having its location and place of business in the city of Green Bay”; that a copy of its articles of incorporation are attached to and made a part of the complaint; that, acting under the pretended authority purported to be conferred by the articles of incorporation and its charter, it has assumed to act as a corporation duly organized and as such to purchase and own real estate in the city of Green Bay, and to construct, lease, and own a six-story office and store building and asserts its power and intention to continue so to do; that defendant, acting under said pretended authority, filed with the city clerk of the city of Green Bay an application for a franchise to construct, operate, and maintain conduits in the streets within a limited district in the business portion of said city and to furnish to the citizens of Green Bay electric current for light and power purposes, hot water, steam, and air; that a copy of the proposed ordinance was filed with the city clerk; that such application was not published as required by law and was never published in whole or in part; that after the filing of said application and copy of ordinance with the city clerk the council changed and amended the same, and as so amended passed an ordinance granting certain rights to the defendant; that said ordinance was approved by the then mayor of the city of Green Bay, and thereafter the defendant filed with the city clerk its written acceptance of said pretended ordinance and the pretended franchise purporting to be granted thereby; that thereafter defendant installed in the basement of its office and store building an electric plant and equipments for the generation of electricity for light, power, and heat, and a plant and equipments for the production and distribution of steam, air, hot water, and other products, and began to excavate and erect in the streets trenches, conduits, wires, poles, pipes, and appliances; that defendant owns said franchise purported to be granted by said pretended ordinance, and claims to have the right and authority attempted to be conferred upon it thereby, and is using and occupying a portion of the streets and alleys thereunder; that the stockholders of defendant are the Minahan family, one of whom at the time of signing the ordinance was the mayor of the city of Green Bay and was directly and indirectly interested in the defendant company and its property, whereby said pretended ordinance and franchise was and is null and void; that the relator applied to the Attorney General to bring this action against the defendant to oust it of its pretended and alleged powers and privileges; that the Attorney General refused; and that the relator gave bond to the state of Wisconsin to protect it against damages and costs by reason of bringing this action, which bond was approved by the Attorney General. The complaint sets out at length other matters not material to this appeal, and concludes with the following prayer: “Wherefore plaintiff prays that defendant be required to show cause by what authority it holds and exercises said pretended ordinance and franchise and the rights and privileges purported and attempted to be conferred thereby upon it, and that, in default of so showing cause, defendant be adjudged guilty of unlawfully holding and exercising the same, and that it be ousted and excluded therefrom, and that plaintiff recover the costs and disbursements of this action.

Marshall, J., dissenting.

Greene, Fairchild, North & Parker, for appellant.

Minahan & Minahan, for respondent.

KERWIN, J. (after stating the facts as above).

It appears from the opinion of the trial judge sustaining the demurrer that it was sustained on the ground that the complaint does not state that the defendant is a corporation--only that it is a “pretended corporation”--and that no other attack was made upon the complaint in the court below. The contention of the appellant here is that, since the facts are stated from which the court can determine that the defendant is a corporation, the corporate existence is sufficiently alleged to meet the calls of section 3205, St. 1898, which provides that in an action by or against a corporation the complaint must aver that the plaintiff or defendant, as the case may be, is a corporation, and, if organized under the laws of this state, that fact must be averred, and, if not so incorporated, an averment that it is a foreign corporation. In Carpenter v. McCord L. Co., 107 Wis. 611, 83 N. W. 764, this court sustained a demurrer to the complaint because of lack of such averment and said: “That the appellants are intended to be sued as corporations sufficiently appears from their names. Brauser v. New England F. Ins. Co., 21 Wis. 506. That being so, the complaint fails to comply with the requirements of the statute.” We do not find it necessary to determine whether a statement of facts showing corporate existence would not be a sufficient compliance with the statute. Here we think the pleading falls short of direct averment of all the facts necessary to show corporate existence. On the contrary, the allegation that the defendant is a “pretended corporation” at least raises the implication that it is not a corporation. It is difficult to see how the defendant could be a “pretended corporation” and at the same time a real corporation. In other words, the allegation that defendant is a pretended corporation at least implies that it is not the thing it pretends to be.

Moreover, the complaint is wanting in full statement of all the material allegations necessary to show the creation of a valid corporation and especially in face of the positive allegation that it is a “pretended corporation.” Besides, there is no allegation that the articles of incorporation or a copy thereof duly certified as required by subdivision 7, § 1772, St. 1898, was filed with the Secretary of State, or that a verified copy and certificate of the Secretary of State showing date when such articles were filed and accepted by the Secretary of State with the date was left or filed with the register of deeds of the county in which said corporation is located, or that any certificate of incorporation or charter was ever issued, but merely that the defendant was acting under the “pretended authority purported to be conferred by its said articles of incorporation, and by its corporate charter defendant has assumed to act as a corporation duly organized.” It is clear from the allegations of the complaint that the plaintiff has not only failed to aver that defendant is a corporation, but has failed to allege all the facts from which the court could find that it is a corporation, and has directly alleged that it is only a pretended corporation, so on no theory has the statute requiring corporate existence to be alleged been complied with. It was necessary for plaintiff to show that some person natural or artificial was before the court as defendant. No natural person has been sued, and no artificial person, because the defendant does not appear to be a corporation--only a pretended corporation. We do not regard it necessary to discuss cases cited by appellant from other jurisdictions upon the question, because we agree with the court below that the case is ruled by our statute referred to, and the decision of this court under it. Counsel, however, cite to our attention State ex rel. Weinsheim et al. v. Leischer, 117 Wis. 475, 94 N. W. 299, as supporting their contention; but in that case it will be seen that the distinction is clearly made between an action brought against a legal corporation which has usurped franchises which it does not possess, and a case where the alleged corporation is not one in fact and the object of the action is to procure a judgment declaring it to have no legal existence. It is clear from the complaint here that the action is not brought to procure a judgment declaring that defendant has no legal existence, but because it holds and exercises a pretended ordinance and franchise and the rights attempted to be conferred. Sections 3466, 3240, and 3241, St. 1898; Independent Order of F. v....