Railroad Co. v. White

The opinion of the Court was delivered by

Willard, C. J.

The only questions brought before us by the present appeal arise on the exceptions to the refusal of the.Circuit Judge to nonsuit the plaintiff. The action was upon a subscription to the capital stock of the plaintiff corporation alleged to have been made by the defendant while acting as an agent of the plaintiff corporation in procuring subscriptions to the capital stock of said corporation. The first ground of nonsuit raises the question whether the plaintiff was competent to sue as a body politic and corporate in pursuance of its Act of incorporation. The objection cited to its competency is, that it had failed to prove that the $1,000,000 of stock provided by its charter had been in fact subscribed.

The Act of incorporation (15 Stat., 442,) does not express any such limitation or condition, as it regards the grant of corporate authority to the incorporators. If such a limitation exists, it must be made out by implication, having regard to the objects of the Act of incorporation. The difficulty in the way of raising such implication lies in the fact that the Act expresses the conditions attached to the grant of the corporate franchise in the following language: “Provided, That said persons shall commence operations upon said road within two years after the passage of this Act and complete the same within five years.” This proviso is immediately connected with the words conferring the franchise, as a proviso thereto, and makes the intention to subject the words of grant to it as a condition entirely clear.

The Legislature having thus expressed the conditions on which the grant of the franchise should depend, it is not competent to raise other and additional conditions by mere implication. It is 'not pretended that there is ground for a necessary implication, arising from the fact that any of the expressions of the Act would be insensible, or any of its provisions ineffectual, unless such intent was raised; but the attempt to raise the implication rests on no higher ground than that it is a reasonable inference considering the nature and the objects of the grant. Considered in this light the answer is conclusive that the conditions of the grant being expressed they are not left to inference. Section 6 of the Act fixes the period of commencement at three years instead of two, as fixed .in Section 1. But it is not necessary to construe these Sections as connected together, as no objection is made based upon a failure to commence *163operations within the time limited by law. The first ground of nonsuit was not well taken.

The proposition advanced by the second ground for nonsuit is based on the fact that the subscription list was in the hands of the defendant for the purpose of his obtaining subscriptions thereto in behalf of the corporation at the time the defendant signed it as a subscriber, and claims that no contract could arise as between the plaintiff corporation and defendant, unless it is made to appear by proof that the defendant had been appointed Commissioner to make contracts of that nature for the company by a' majority of the chartered corporators. There was direct evidence that the defendant, White, was appointed to receive subscriptions to the road at a meeting of the corporators at which a majority of the corporators were present. Evidence was also introduced to the effect that the defendant assumed to exercise such authority in behalf of the company and actually took the subscriptions of several persons in addition to subscribing the subscription list himself.

These proofs were competent to go to the jury upon the question whether the defendant was acting ifl behalf of the plaintiff corporation while holding the subscription list and soliciting and obtaining subscriptions. The Act does not require the appointment of commissioners for such purpose, but its language in regard to the persons authorized to take subscriptions is as follows: “ Under the direction of such persons as may be determined on by a majority of said incorporators.” The .Circuit Judge would not have been justified in withdrawing such evidence from the jury. The second ground on which a nonsuit was asked was insufficient.

The appellant has pressed other reasons for demanding a non-suit than those that appear to have been urged at the trial and cannot be considered for that reason. It is not competent to reverse a ruling at the Circuit on grounds that were not urged before the Circuit Court.

The appeal must be dismissed.

Melver, A. J., and Haskell, A. J., concurred.