The State ex rel. Walker v. Corkins

• Decision Date: 18 June 1894
• Parties: The State ex rel. Walker, Attorney General, v. Corkins et al
• Court: Missouri Supreme Court

27 S.W. 363

123 Mo. 56

The State ex rel. Walker, Attorney General, v. Corkins et al

Supreme Court of Missouri

June 18, 1894

Demurrer to information sustained.

R. F Walker, Attorney General, for the state.

(1) Quo warranto is the proper remedy when persons have usurped or are unlawfully exercising the franchises of a corporation. R S. 1889, sec. 7390; St. Louis v. Shields, 67 Mo 247; Cooley on Const. Lim. [3 Ed.] sec. 254. (2) Section 7390, supra, confers express authority upon the attorney general to institute such proceedings in the supreme court, and it is not necessary to obtain the consent of the court before filing the information. State ex rel. v. Rose, 84 Mo. 198; State ex rel. v. Vail, 53 Mo. 97. (3) The information is properly directed against the persons usurping the franchises of a corporation, and not against the pretended corporation by name. People v. Richardson, 4 Cowan, 97, note on p. 109; People ex rel. Attorney General v. Ins. Co., 15 Johns. 357; 40 Albany Law Journal, p. 10 and cases cited. (4) To institute proceedings against a corporation as such, where it is claimed that it has not been legally incorporated, would be to recognize its corporate existence; it is, therefore, only necessary, where the incorporation is void, to institute the proceedings against the person exercising the franchise. State ex rel. v. Uridel, 55 N.W. 1072; Ins. Co. v. State, 22 S.W. 1048. (5) A corporation being an artificial person, can not exist unless created by law; when called upon to show by what authority it exercises certain franchises as a corporation, it must show a valid legislative enactment therefor. Mason v. Perkins, 73 Mich. 303. (6) Under the statutes of this state corporations are divided into classes, the purposes of their existence defined and their powers clearly set forth. R. S. 1889, chap. 42. (7) The general provisions of said subdivision eleven of Revised Statutes, 1889, section 2771, must be confined to such classes as are enumerated in the foregoing portions of the section. It is an established principle of construction that where general words follow particular ones, the rule is to construe the former as applicable only to the persons or things particularly mentioned. Ass'n v. Delano, 108 Mo. 217; State v. Bryant, 90 Mo. 534; Grumley v. Webb, 44 Mo. 444; St. Louis v. Laughlin, 49 Mo. 559; St. Joseph v. Porter, 29 Mo.App. 605; Knox City v. Thompson, 19 Mo.App. 523. (8) At the last session of the general assembly an act was passed requiring bond investment companies to deposit the sum of $ 100,000 with the state treasurer, in cash or securities, for the protection of investors in the bonds, certificates or debentures of such companies. Laws Mo., 1893, p. 121. This is not such a recognition of the corporate existence of the bond companies as to authorize them to engage in business as such. While it is true that a proper legislative recognition of a company as a corporation would cure certain defects in its organization, such legislative recognition must be of an association which could have been incorporated. Dobson v. Simonton, 86 N.C. 492; Evenson v. Ellingson, 67 Wis. 634. (9) Legislative recognition can only be of a de facto corporation. Society v. Cleveland, 43 Ohio St. 481; Taylor on Priv. Corp. [2 Ed.] 143, and note 5; Beach on Priv. Corp., sec. 13, p. 21.

Jackson & Montgomery for respondents.

(1) The use of the words "for any other purpose, intended for pecuniary profit or gain" (R. S. 1889, sec. 2771) would seem to indicate the intention of the legislature to include all the varied business enterprises which might be entered into in a great commonwealth. The meaning and proper construction of the word "other" is that it is employed in this relation, to obviate the insertion of a long list of names or things. Instead of inserting them eo nomine, they are embraced in the expression, "any other purpose," etc. To express the full meaning, the sentence would read "for any purpose different from those which have been specified, intended for pecuniary profit or gain." The rule of "ejusdem generis" has no application here. It is a rule of construction that, where general words follow particular ones, the former shall be restricted as applicable only to persons or things ejusdem generis. But this is not an inflexible rule. It is only adopted as a rule of construction to ascertain the intention of the legislative body. If it is clearly not the intention of legislative body to limit the general words to mean and include those of a like character as the ones particularly enumerated, it will not be so applied. 17 Am. and Eng. Encyclopedia of Law, title "others," page 278, et seq.; State v. Williams, 35 Mo.App. 546; Eubanks v. State, 5 Mo. 450; 1 Kent's Com., 462; State v. Shock, 68 Mo. 560; Boynton v. Coyle, 4 Mo. 599; Foster v. Blount, 18 Ala. 687. Again, if the particular words exhaust a whole genus or include widely variant and different persons or things, the rule of construction does not apply. Ellis v. Murray, 28 Miss. 129; Boynton v. Coyle, 4 Mo. 599; Eubanks v. State, 5 Mo. 450; Foster v. Blount, 18 Ala. 687; State v. Williams, 35 Mo.App. 546; Brown v. Corwin, 42 N.W. 481; Bank v. Investment Co., 12 S.W. 103. (2) But even if there was any doubt about the right of the defendant to organize under this article, such doubt is fully removed by the subsequent action of the legislature. Its right, and the powers conferred upon it are fully recognized and ratified by the act of April 21, 1893. Laws, 1893, page 121. "When the existence of a corporation has been recognized by acts of the legislature, all inquiry into the original creation of the corporation is precluded." This principal is recognized and supported in Railroad v. Railroad, 2 Mo.App. 73; Mead v. Railroad, 45 Conn. 199; Poor School v. Co., 9 Ohio 203; Bow v. Allentown, 34 N.H. 351; State v. Road Co., 44 N. J. Law, 496; Koch v. Railroad, 23 A. 463; McAnley v. Railroad, 83 Ill. 352; Snell v. Chicago, 133 Ill. 427. This principle applies as well to direct proceedings by quo warranto as in the case at bar. People v. Perrin, 56 Cal. 346; Proprietors of Enfield, 5 N.H. 280; Commonwealth v. Proprietors, 10 Mass. 155; Commonwealth v. Heirs of Androe, 3 Pick. 224; People v. Manhattan Co., 9 Wend. 351; Matter of Elevated Road, 17 N.Y. 338; Canal Co. v. Vallette, 21 How. U. S. 414; People v. Farmham, 35 Ill. 566; People v. Jameson, 16 Ill. 257; Cook on Stockholders, sec. 636, and authorities cited in note 2. (3) This compliance on the part of the defendants with the act and the deposit of the $ 100,000 securities, now estops the state to question its right to do business. U. S. v. Wagon Road, 54 F. 810, and authorties cited; 2 Herman on Estoppel, page 1406, sec. 1256. (4) It is suggested that it may be urged that the business of the defendant is neither "manufacturing or business" as the words are used in the statute. Business, we take it, in its usual meaning, embraces about everything about which a person can be employed, and loaning money and saving money and all such contracts are included. A wider, broader term could hardly be used. Trewart v. Decker, 51 Wis. 47; Parker Mills v. Commissioner, 23 N.Y. 242; Goddard v. Chaffee, 2 Allen, 395; Winter v. Railroad, 2 Dillon, 487.

Macfarlane, J. Brace, J., does not sit. Sherwood and Burgess, JJ., dissent.

OPINION

In Banc

Quo Warranto.

Macfarlane J.

This is an original proceeding in the nature of a quo warranto against respondents as the officers who assume to manage the affairs of what they claim to be a corporation organized under the laws of the state of Missouri. The petition or information is as follows:

"Now comes R. F. Walker, attorney general for the state of Missouri and states that the above named defendants on the first day of November, 1892, deposited articles of agreement with the secretary of state for the purpose of securing a certificate of incorporation for a company to be named and styled the Pettis County Investment Company, city of Sedalia, Missouri. The said certificate was sought to be obtained under the provisions of subdivision 11, section 2771, article 8, chapter 42, Revised Statutes 1889; that said article 8 provides for the incorporation of manufacturing and business companies; that said company so sought to be incorporated by defendants was not sought for a manufacturing or business purpose, but for the purpose of issuing bonds to be paid for by purchasers thereof in monthly installments and to be redeemed by said corporation so sought to be formed in such order and at such times as might be prescribed by it that on the said first day of November, 1892, articles of incorporation were issued by said secretary of state to said defendants for the incorporation of said company under the name and style of the Pettis County Investment Company, city of Sedalia, Missouri, as aforesaid; that the issue of said articles for the incorporation of said company for the purpose stated was without any authority of law; that from and since the first of day of November, 1892, the above named defendants have claimed and held themselves out to the public as a corporation under the name and style of the Pettis County Investment Company, city of Sedalia, Missouri; and as such have claimed and exercised the right and privilege of issuing bonds and selling and disposing of the same in the state of Missouri; that such issue and sale of bonds under the name, style and pretended authority aforesaid is without any legal warrant, franchises, charter or grant.

"The attorney general for the plaintiff further states that he has no knowledge or belief nor means of information sufficient to form a belief as to whether or not other parties to plaintiff unknown are under the name of the Pettis County...