Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1873-01-15
AN IMPORTANT LEGAL OPINION.
Chancellor Temple on the Powers of
Courts to Grant Letters Of IncOrpara-

Chan cellorrf Temple ON tho Powers OF
! Courts to Grant Letters of IncOrpnra'
J. ton.
| The following opinion from Chancellor
Temple, lately delivered, will be respected
wherever his learning and character as
est to business men:
In the matter of the petition of R. H.
| Gratz, G.. A. Perdicaris, A. G. Rchey,
and others, &c pdrte.
F. This,is an Application enTthe part of pc
| titioners, who are citizens of New Jersey
and Pennsylvania, to be incorporated un-
der the name and style of "The Poplar
Greek Railroad, Coal and Iron Company"
The petitioners pray to be clothed with
the rights, powers and privileges necessa-
ry to construct and operate railroad, with
one or more tracks, commencing in An
derson county, at any point on the Noun
tain Fork of Poplar Creek near Dunna-
von's Gap, and running along the valley
near the base of Walden's Ridge SO as to
connect with any railroad or railroads
now or hereafter constructed, or with any
navigable stream within thirty miles of
said DunRavon's Gap, land on either or
both sides thereof, said corporations rail-
road to have any and all branches neces-
sary to reach any coal, iron or other mine,
&c, &c.
They also pray for the power of using
their capital or any part thereof in mining
and transporting coal, iron ore, salt, oil
and other minerals, in manufacturing and
refining the products of the same into any
shape and form. &c. &c, and with power to
erect on their lands manufactures, mills,
furnaces, FORCES, fixtures, machinery, &C.,
&c. ( IfftttEHH 4 ttBE t#t#
1t will be observed that the petitioner
asks for two different kinds of corporate
privileges, namely: One to build and OPP
crate a railroad with branches, and the
other to conductSmining and manufactur-
ing operations. The petition is filed under
the act of January %, 1871, which was pass
ed under the authority of the Constitution
of 1870, Article XI, Sec. s, which provides
that the General Assembly shall provide,
by general laws, for the organization of all
corporations hereafter created"
This provision of the Constitution, and
the said law passed under it, as gen.
orally understood, are fraught with untold
mischief. Even when most strictly con-
strued, it is a problem whether the dele
CATION of such power to the courts is not
liable to abuse and dangerous to the well
fare of the State.
courts have no aooaUer of legislation, and
that any attempt on the part of the Legis-
lature to devOlve any such power on them,
even under the new Constitution, would
be repugnant to that instrument. The
very first section of this act is probably
open to this charge, when it provides that
the decree granting the charter " shall
ei,unaerdte such usual powers and privi-
-leges of corporate bodies as may be neces-
TO fGn 70 al, Of
said corporation" Who is to judge of
what are usual powers, and of what are
necessary under this act? Clearly the
court (Sec. 14) is even broader and more
latitudinous in comforting the power of
legislation than the clause just quoted.
Chancellor Cooper, in a recent opinion of
great clearness, has said on this point:
can confer upon them (the petitioners no
privileges other than those prescribed by
the general law. Nor can | Gull out, at
the instance of the petitioners, some of
to the exclusion of others. | can not, to
use the words of the court, in Mayor and
Aldermen of Morristown VS.. Shelton, l
Head, add to or diminish the powers,
privileges and immunities granted, nor
make the least change of any kind in the
charter, as prescribed by the Legislature.
To do so, would be to depart from the
special authority under which / act" i \
As was further declared in the case re-
ferred to by Chancellor Cooper, in Head,
the legislative Willis, or should be, fully
declared in the act, and all the court has
to do is to see that the persons asking to
be incorporated have brought them
selves within the provisions of the
law, and if they have, to pronounce q
decree to that effect and put it on
record. The Chancellor, under this
statute, and kindred ones, acts as a kind
of commissioner under Legislative author
ity, and he can act only as the statute
directs: 3 Sneed, l Head; , Sneed, 81;
Sneed, 1914.
The application of these principles to the
facts of this case is more difficult than to
extract the principles themselves. Herein
lies the great difficulty in all these eases.
And, as this is an important case, and in
wolves the first application to me for
charter to build railroad, under section
Is and sub-sections, and as the petitioners
contemplate, in good faith, expanding
large sums of money under their charter
in mining, manufacturing and in con-
structing railroad, it is of the first i'm
portance that the charter under which
they operate should be a valid one. 81
1st. The first question is, can there be
voluntary subscription" of stock by the
incorporates, without the Intervention of
commissioners, as required in subsection
?. Subsection 8 speaks of stocks Sub
scribed by voluntary subscription or upon
books opened by the commissioners" and
it provides that President and Directors
may be elected, which ELECTION may be
conducted by the commissioners" "or any
three of the stockholders appointed by the
commissioners" The last section of sub
section provides that the petition shall
ask "for the appointment of commission
ers to obtain stock for the contemplated
Railroad" While the statute provides
| for the election of officers under the direc-
ton of commissioners, it does not say it
| shall be done in no other way. Looking
at the whole statute, and the objects to be
accomplished L am of the opinion that
the provision as to the appointment of
commissioners is directory, and that if the
stock is in fact subscribed, and the officers
are in fact elected by the stockholders,
| (both of which facts appear in this case)
the proceeding would be valid, and