Cooke v. Marshall

■Opinion by

Mr. Chief Justice Green,

We were very willing to grant a rehearing in this case as it is one of a quite exceptional character, and the leading question at issue is so barren of authority as to make it a case of first impression. We have heard with much interest the able argument of counsel upon the second hearing and have given a patient study of the case, but we are unable to see any sufficient reason for changing the conclusions' expressed in the first opinion filed. For the reasons there stated we still think that all the issues of capital stock were entirely illegal and void. As the claimants represented by the plaintiff, of the office of trustees, found their title to the office upon the votes of the holders of capital stock, and we hold that there never was any valid issue of stock, we cannot consider them as having any title to* the office claimed. But there can be no doubt, we think, that. the administration of the affairs of the company during the long-period succeeding the organization of the company must be-regarded as entirely legal in all respects. The trustees were-originally elected in strict conformity with the by-laws of the-company, and their title was never questioned until in the present litigation; they were trustees de facto and the acts done by them were within the line of their duty as such officials-The claim of title to the office by the defendant and those whom he represented we cannot consider as valid. . The function of the original coporators was exhausted when their successors-were designated by them, and we do not see how their original authority could be resuscitated by the action of two of their number after a delay of thirty-two years and a constant acquiescence in the action of the original corporators in establishing their successors in office. We do not consider the title of the defendant and those he represents to the office of trustee as of any validity.

In this situation it seems to us that immediate steps should be taken to remedy this anomalous condition of affairs. The corporation is certainly the owner of the property except such as has been sold to plot holders and is devoid of a legally constituted managing body. As the private interests of certain parties have always been recognized in the way of a proportionate holding of the corporation, it seems to us that there ought to be no difficulty in effecting a reorganization under the gen*203eral corporation law of the commonwealth. Of course we cannot undertake to give advice as to what should be done nor to be bound by any suggestions we now make, but it may be quite possible that in any such reorganization the proportionate interests of the several parties holding stock can be recognized as the basis upon which the ultimate division of interests may be founded. W e make no decision upon the subject but leave the whole matter open for future consideration. We make no-change in the judgment as formerly entered.

The judgment of the court below is reversed and judgment is now entered for the defendant with costs under the case stated.