State v. Mobile & G.R. Co.

• Decision Date: 19 December 1895
• Citation: 18 So. 801,108 Ala. 29
• Court: Alabama Supreme Court
• Parties: STATE v. MOBILE & G. R. CO.

18 So. 801

108 Ala. 29

STATE v. MOBILE & G. R. CO.

Supreme Court of Alabama

December 19, 1895

Appeal from circuit court, Bullock county; J. M. Carmichael, Judge.

Action by the state against the Mobile & Girard Railroad Company. Complaint dismissed, and plaintiff appeals. Affirmed.

The state of Alabama, by the solicitor of the Third judicial circuit, filed its complaint in the circuit court of Bullock county, seeking to have the charter of the Mobile & Girard Railroad Company forfeited upon several enumerated grounds. The complaint averred the incorporation of the Girard Railroad Company by special act of the general assembly of Alabama in 1846; that by amendment of said act in 1854 the name of said railroad company was changed to the Mobile &amp Girard Railroad Company, and that since that time several amendatory acts relating to the Mobile & Girard Railroad Company have been passed by the general assembly of Alabama that the purpose of the corporation was to "build and maintain a railroad from the town of Girard, in Russell county, Ala., to intersect or connect with the navigable waters of Mobile Bay, or with the railroad leading from Montgomery to West Point." It was further averred that in 1869 the Mobile & Girard Railroad Company removed its books, papers, records, documents, and officers from Girard in Russell county, Ala., to the city of Columbus, in the state of Georgia, where they have since remained, and that its officers have, since the year 1886, if not earlier resided without the state of Alabama, and that by the failure of the Mobile & Girard Railroad Company to keep its books, records, papers, documents, offices, and officers within the state of Alabama, and to keep itself subject to the control and visitatorial powers of the state, the said Mobile & Girard Railroad Company has forfeited its rights to its charter granted by the special acts of the general assembly. It was further averred that, in the year 1886, the Mobile & Girard Railroad Company, without any authority given it to lease its property, executed a lease of all of its rights, privileges, and franchises, roadbed, cars, rolling stock, and all of its property to the Central Railroad & Banking Company of Georgia, and that since that time it has been operated by and under the control of the Central Railroad & Banking Company of Georgia, and the receivers of said company appointed by different courts, and that by reason of the execution of said lease, the Mobile & Girard Railroad Company has forfeited its rights to the charter privileges granted in the act by which it was created. It was further averred in said complaint that the Mobile & Girard Railroad Company had never completed its railroad to the point of destination designated by the several acts amending the act by which it was incorporated, and therefore it had never been completed and put in operation according to its charter, but has exercised franchises and privileges, since January, 1880, which were not conferred on it by law, by reason of which the charter of said company should be vacated. It was further averred, in said complaint, that the Mobile & Girard Railroad Company had no principal office or place of business in the state of Alabama, which was in contravention of the laws of the state, and by reason of such violation its charter should be forfeited. The complaint closes in the following words: "Wherefore, in accordance with the statutes in such cases made and provided, the state of Alabama, through its solicitor for the Third judicial circuit, who prosecutes herein upon the order of the judge of the circuit court for the Third judicial circuit of Alabama, made in accordance with said statutes, brings this action, and prays that the charter of the said Mobile & Girard Railroad Company may be vacated and the existence of said corporation annulled." To this complaint the defendant filed the following pleas in abatement: (1) "And now comes the said defendant, and says this court ought not to have or take further cognizance of the action aforesaid, because he says that now, and at the institution of this suit, the defendant did not have its principal office in said Bullock county, and it did not then, and it does not now, do any business in said Bullock county. And the defendant further says that now, and at the institution of this suit, the said defendant had an office or place of business in Russell county, Ala., where it held the annual meetings of its stockholders, for the purpose of electing its officers and directors, and transacting such other business as might be done at said meetings, and that said place has been constantly kept for said purpose for many years, and that then or now this defendant has had no other office, either in this state or elsewhere. (2) And now comes the said defendant, by its president, N. P. Banks, who is duly authorized thereto, and says this court ought not to have or take further cognizance of the action aforesaid, because this defendant does not have its principal office in Bullock county, and does no business in said Bullock county, and at the institution of this suit this defendant did not have its principal office in said county, and did not do any business in said county. And this the said defendant is ready to verify. Wherefore, he prays judgment, whether this court can or will take further cognizance of the action aforesaid." To these pleas in abatement, the plaintiff filed the following demurrers: "(1) The pleas do not allege that the defendant had kept its books, papers, records, etc., principal office and officers in the state of Alabama. (2) Said pleas do not allege that said defendant had more than a temporary office in Alabama. (3) Said pleas do not state that the defendant had no principal office in the state of Alabama. (4) Said pleas do not state that the defendant does no business in Alabama. (5) Said pleas do not state in what county the defendant has its principal office. (6) Said pleas do not state in what county in Alabama said defendant does any business." The cause was submitted to the jury upon an agreed statement of facts, which were substantially the same as the averments of fact in the complaint, which are stated above. The court overruled the plaintiff's demurrers to the pleas, and sustained the pleas in abatement, and rendered judgment dismissing the suit. The plaintiff prosecutes the present appeal from this judgment, and assigns as error the overruling of the demurrer to the pleas, the ruling of the court in sustaining the pleas in abatement, and the judgment rendered.

John V. Smith, Geo. F. Moore, and P. B. McKenzie, for the State.

Peabody, Bannon, Hatcher & Martin, for appellee.

HEAD J.

We are unable to see how this action can be maintained in the circuit court of Bullock county. It is a statutory proceeding, strictly, to vacate the charter of the defendant corporation, on one or more of the grounds specified in section 3167 of the Code of 1886, and was instituted, in the name of the state of Alabama, by the solicitor of the Third judicial circuit of Alabama, under the provisions of section 3168 of the Code, which are as follows: "The judge of the circuit court in which the corporation is located whenever he has reason to believe that any of these acts or omissions can be proved and it is necessary for the public good, must direct the solicitor of the circuit or county to bring such action; or such action may be brought on the information of any person giving security for the costs of the action, to be approved by the clerk of the court in which the action is...