State v. The Delaware & Atlantic Telegraph and Telephone Company
| Decision Date | 01 September 1885 |
| Citation | 31 A. 714,12 Del. 269 |
| Parties | THE STATE OF DELAWARE, ex-relatione, "THE BALTIMORE & OHIO TELEGRAPH COMPANY, of Baltimore City," a Corporation of the State of Maryland, v. THE DELAWARE & ATLANTIC TELEGRAPH AND TELEPHONE COMPANY |
| Court | Delaware Superior Court |
MOTION to discharge a rule granted defendants to show cause why a writ of mandamus should not issue.
Rule discharged.
Edward G. Bradford, for the respondent, assigned the following reasons in support of his motion.
1. For that in and by the petition and exhibits filed by the said Baltimore & Ohio Telegraph Company of Baltimore City, the relator in this cause, it appears that the said relator is authorized by its charter to construct, own, operate and lease lines of telegraph only in the city of Baltimore and throughout the State of Maryland, and its authority to carry its operations is expressly limited to the city of Baltimore and the counties of the State of Maryland; and it does not appear that said relator possesses any authority under the laws of the State of Delaware to construct, own, operate or lease any telegraph line or lines within the State of Delaware, or to carry on any operations therein.
2. For that it appears in and by said petition and exhibits that the said relator is a foreign corporation created by and existing under the laws of the State of Maryland, and does not appear that it is a corporation created by or existing under the laws of the State of Delaware; and it appears that said respondent is also a foreign corporation created by and existing under the laws of the State of New York, and does not appear that it is a corporation created by or existing under the laws of the State of Delaware, or that this court possesses any jurisdiction to proceed by way of mandamus against said respondent.
The certificate of incorporation of the relator sets forth that the corporators "hereby form a corporation for constructing, owning, operating and leasing lines of telegraph in the State of Maryland."
There is not a word in the certificate to indicate any intention or authority on the part of the corporation to construct, own operate, or lease any telegraphic line beyond the limits of Maryland, or beyond those limits to carry on any operations nor does the relator's petition anywhere assert such authority. On the contrary its statement is: With such a charter and such only, so far as is disclosed by the petition, the relator comes within the State of Delaware, and asks this court to compel, by mandamus, the respondent to aid the relator in operating lines of telegraph beyond the limits of Maryland and within this State. The court will surely decline to do so, for the reason that the relator is wholly without authority to operate telegraphic lines in Delaware. The relator, as a corporation, is a mere creature of the law and as such its powers are measured by its charter. What has not been granted in and by its charter or articles of association, either expressly or by implication, is prohibited by the common law. Trustees of Dartmouth College v. Woodward, 4 Wheaton, 518, 636; Bank of Augusta v. Earle, 13 Pet., 519, 587; Perrine v Chesapeake and Delaware Canal Co., 9 How., 172, 184; Thomas v. R. R. Co., 101 U.S. 71, 81; R. R. Co v. Harris, 12 Wall., 65, 81; Morawetz on Pri. Corp., Sec. 149, 150. The charter of the relator does not grant or attempt to grant either expressly or by implication, any right or authority to operate telegraph lines beyond the limits of Maryland.
The relator under its certificate of incorporation, became clothed with such powers, in addition to those expressly granted, as were required to carry into effect the express grant. Such powers only were conferred by implication. Straus & Bro. v. Eagle Ins. Co. of Cincinnati, 5 Ohio St., 60, 62.
No implied power was conferred, or intended to be conferred, to construct and operate lines of telegraph within the State of Delawore. Such a power is not "necessary to carry into effect those expressly confered." It is not "incidental to the very existence" of the corporation. To recognize the existence of such a power would be practically to render indefinite and uncertain to the last degree the fundamental agreement between the corporators, upon which they should have the right to rely as a sure guaranty that "the object of this company shall be to prosecute the enterprise expressly set forth in their charter or articles of association," and that the company shall not "join in any speculation which is not in pursuance of the purposes thus indicated." The existence of any such power is expressly negatived by the provision in the charter of the relator, stating that "the places where the operations of the corporation are to be carried on, are the city of Baltimore and the counties of the State of Maryland." No State can grant a corporate franchise which proprio vigore can be operative or of binding force beyond the limits of such State. Morawetz on Pri. Corp., Sec. 500. The recognitition by any State of the existence of a foreign corporation and of the legal validity of its acts and contracts in such States depends solely upon the comity of that State. Paul v. Virginia, 8 Wall., 168, 181. It is evident that the law of comity can never enlarge or add to the powers of the foreign corporation as contained in its charter, unless the charter of the company has undertaken to confer the authority to act within the foreign State, there is no power on the part of the company, the exercise of which can be recognized as valid under the law of comity. Morawetz on Pri. Corp., Sec. 501, 502, 504, 506; Angell & Ames on Corp., Sec. 161; Bank of Augusta v. Earle, 13 Pet., 519, 587, 588, 589; Runyon v. Coster's lessee., 14 Pet., 122, 129, 130; 25 Mich. 214, 217, 220, 223, 227; Pierce on Railroads, 14, 497; Binney's Opinion, 4 Rob. (La.) 517, 72 Ill. 50, 53; 29 Barb. 650, 654, 655; Lathrop v. Commercial Bank of Scioto, 8 Dana (Ky.) I14, 115, 117; Curtis v. McCullough, 3 Nevada, 202, 218; Bard v. Poole, 12 N.Y. 495, 504, Aspinwall et al. v. The Ohio & Miss. R. R. Co., 20 Ind. 492; Merrick v. Van Sant Wood, 34 N.Y. 208, 215, 221.
The relator possesses no implied power under its charter to extend its lines beyond the limits of Maryland, even though such extension would be a pecuniary benefit to or conducive to the convenience of the contract of the relator's business within Maryland. Abbott v. Balt. & Rapp. Steam Pack. Co., 1 Md. Ch., 542, 549; Ill. Cen. R. R. Co. v. Irwin, 72 Ill. 452, 455; Pearce v. Madison & Indianapolis R. R. Co. and Peru & Indianapolis R. R. Co., 21 Howard, 441; The New Orleans, etc., Steam. Co. v. Dry Dock Co., 26 Am. Rep., 90; 28 La. Ann., 173; Balt. & Havannah Gress. Turnpike Co. v. Union Railway of Balt., 35 Md. 234; O. & M. R. R. Co. v. I. & C. R. R. Co., 5 Am. L. Reg. N. S., 733; Downing v. Mt. Wash. R. Co., 40 N. H., 230; Pierce on Railroads, 495; Simpson & Denison, 10 Hare, 51, 54, 57, 58, 60, 61; East. A. R. Co. v. E. C. R. Co., 7 Eng. 2 and L. Eq., 505, 508; Colman v. E. C. R. Co., 10 Beav., 1; Salomons v. Laing, 12 Beav., 339; Munt v. The S. & C. R. R. Co., 3 Eng. L. & Eq., 144, 149; Morarwetz on Pri. Corp., Sec. 209, 227, 221. Legitimate traffic arrangements are simply agreements by which the business that comes within the scope of several companies is carried on more conveniently and economically and can never involve an extension of the chartered enterprise beyond the limits of the charter.
It does not at all follow because a third person may maintain an action against a corporation on a contract, or act made or done under an extension of the business of the company, beyond the chartered limits, that such extension should be considered legal or authorized by law. Such extension is illegal although such third person may be permitted to recover. Bissell v. The M. S. & N. Ind. R. R. Co., 22 N.Y. 258, 280, 281; Parish v. Wheeler, 22 N.Y. 494, 506, 507; Feitel v. Middlesex R. R. Co., 109 Mass. 398. It is claimed, on behalf of the relator, that by virtue of an Act of the General Assembly of Maryland, approved May 3, 1882, the relator received authority to extend its lines through Delaware. Laws of Md., 1882, 358. But, under the petition as filed, the relator cannot take advantages of any Maryland statutes. The relator must set forth specifically all facts and circumstances necessary to entitle him to a writ of mandamus. High on Ex. Leg. Rem., Sec. 10, 450. The motion to discharge the rule operates as a demurrer to the petition. Ibid, Sec. 455. The several States of the Union are foreign to each other. 1 Greenl. on Ev., Sec. 489. And courts will not judicially notice foreign laws. Ibid, Sec. 486. Hence, foreign laws must be pleaded as well as proved. Kinney v. Hosea, 3 Harr., 77; 1 Chitty on Pl., 216. The petition not having set forth or referred to the Maryland Statutes is, therefore, fatally defective.
The Maryland statute undertakes to authorize an extension of telegraph lines into other States, only with the consent of the majority of the owners of the capital stock of the corporation given in general meeting. Hence, such consent at such meeting is a condition precedent to the right of the company to operate lines in Delaware and should upon elementary principles of pleading have been stated in the petition, especially in view of the fact that this case is an application to the State of Delaware through its courts to compel the respondent to aid the relator in carrying on...
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