The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1860-06-28

| OUChIIGCCG
Branch R. r., 80 Maine $50 Barrier
ct d1 Us. F$. d Rut. r. R. Co., 27
Ve7'n. 1871, and many others that might
be referred to are of the same character.
The multitude of cases of this character,
In which no question has been made as
to the power Of the corporation to make
such disposition of their stock, consid-
cred in connection with the well known
strictness of the law:cf corporations and
the ability and acuteness of the profess
sion, usually not unwilling to raise any
question upon which there is any hope
OF success, is entitled to more weight,
against the position here contended for
than a limited number ofpositive adiu,
dications 1850.
Butreliance is placed upon several
cases which have held that where by
statute commissioners were appointed
to take subscriptions preliminary to the
organization of a corporation and were
required to receive specified sum at
the time of subscriptions, that sub
scription taken by them without COM
plafce with that condition, would be
invalid. These cases are the following:
HS6@paio Ibwepike Co., Us. Henderson,,
8th Serg. and Rawle, 219, and several
subsequent cases, in Pennsylvania fol-
lowing that, Jenkins as. Union Turn.
pa&e TO-, 1st Cal. cases in error, &c.; and
Cr0ckea as. Crane, 81 Wend, oil. 1t
would be sufficient answer to the ar
gument attempted to be derived from
them to say that they are entirely map
plicable to contract made by corpo-
ration after it has once acquired a legal
existence and capacity to act. And
the very reasoning upon which they
proceed clearly implies that those same
courts would not have applied the same
rule to such case. For the basis upon
which they rest, is, that at the time of
these subscriptions, the corporation
which they are to organize has no ex-
lstence, and that the commissioners are
simply ministerial agents, clothed with
no discretion of power to contract, and
can only pursue the strict letter Of the
statute. 1t may well be urged that
where the law requires the payment of
a specified sum as a condition precedent
to the organization of the company,that
It's intention was that such payment
should be in cash. Until that was paid
there would be no corporation in exist
ence, no authorized purpose for the ac-
compllshment of which any other arti-
Gle could be received-nobody clothed
with any discretion in the matter or ca
pacity to regulate it by contract These
cases may therefore be considered to
be law, and they by no means estab-
lish the proposition, that after corpo-
ration has acquired existence and pow
er to contract, that it may not by CON
tract receive in payment for stock any
thing necessary for the execution of its
lpGrposes, on the contrary the opposite
TS5l.sreaoe Is TO be derived from them.
IN CrOcker Us. Crane it WWas intima-
sed that the Commissioners had no au-
thority to receive worthless chicks or
uncurrent money in lieu of cash, and it
was said they could not have received
''stocks or mortgafes." But this was
evidently placed upon the considera-
tons we have suggested. For the
learned Judge who gave the opinion
quoted, among other cases, that of Goe
hon Turnpike Go. gS. Hur4ia, John
2l7, which was an action on promis-
airy note, evidently given after the or
ganization Of the Company, for five
shares of stock. The action was sus-
tanned, and the court said ''it was to be
intended that the defendant had duly
become stock holder to that amount"
1t is not to be supposed that Judge
CoWen, with his proneness to comment
upon authorities, would have quoted
this case approvingly upon another
point, without noticing its conflict with
decision on the main point, if he had
supposed the acts of corporation in
eXistance stood upon the same footing
with the acts of the Commissioners,
IN taking the steps preliminary to its
creation.
But it is very doubtful whether even
the doctrines Of these cases is sustained
by the weight Of authority. In the case
of Jenkins Us. Union Turnpike Co.,
the decision ofthe Supreme Court of
New York, was in favor of the validity
OF the subscription. This decision was
reversed by the Court of Errors, but it
lspretty evident from subsequent dec
isions in that State, some of which are
quoted from Cr0cker as, Crane, that
the decision Of the Court of Errors was
not satisfactory. In the case of the 8th
Serg. and Raw; Justice Duncan dis
sented, and noticed the reluctance Of
the New York Courts to follow the dec
ision Of the Court of Errors.
In Central R. r. Co. as. C1dy. 81
Vern 80. the Commissioners took a
note for the payment required by the
statute on subscriptions 1t was deliver
ed by them to the corporation, on it's
organization, and the court held that it
was valid, and its payment might be
enforced. In Greeaa0ille d. Q. r. r.. as.
W00dsjdes. 5 Rich. AS, while deciding
the case upon another ground, the court
says expressly that they are not iEclin-
ed to admit that note taken by the
commissioners was not such payment
as the statue required. The case of
very strong case against the doctrine
contended for by the consel for the
mortgagor here.-There the Statue ex-
pressly provided that five dollars should
be paid on subscription, and ifnot paid
the subscriptions should be void The
Commissioners took a bond in payment
The court held that by reason of ex-
press provision of the statue the sub
scription was void, but that the bond
was valid. They say, $50 in this case
the defendant could not have been COM
PEELED to pay the five dollars share by
force of the subscription, yet if he and
the other subscribers chose to waive
the provisions thus made for their BEN
lift respectively; and agreed, that upon
his giving bond for the same, it should