The Richmond Virginian. (Richmond, Va.) 1910-1920, 1917-06-07
TEXT OF JUDGE RAtA'S
DISSENTING OPINION
Interesting Discussion of Question OF
Law as Set Out in Consideration
OF II. and WIS Petition.

OF interest more especially to the
legal fraternity on account of the
legal points involved is the dissent
ing opinion OF Commissioner VIM. r.
Rhea, of the state corporation COM
mission, In the matter of the petition
for permission to dissolve submitted
to the state corporation commission.
and on Tuesday denied by majority
of that body.
Judge Rhea's opinion in full fol-
lows:
This application was finally sub
mitted after hearing and the filing
of briefs by opposing counsel,
The opinion Of the chairman. and,
! understand, concurred In by Com
missioner Wingfiefd. deals exhaustive
ly in reference to the constitution and
laws OF Virginia as to our duties as
commission and quotes extensively
from decisions and law writers of
other states. to all Of which / might
assent, IL, as / conceive, 1t had any
application to the question before US.
The constitution, section one hun
dred and fifty-four G54. provides:
Provisions shall be made, by general
laws for the voluntary surrender Of
its charter by any corporation. and
for the forfeiture thereof for non
user or misuser.'
Tho general assembly did provide
In clause eleven lD of chapter one
Cd OF the act concerning corpora
tons for the dissolution of corpo-
raions chartered under that chap
ter. but by express provision in sec
ton ono % of this chapter 1t did
not apply TO railroad companies. etc
but by act approved March 20,
1e16, entitled: AN act to amend ana
re-enact section 80 OF chapter v of
an act concerning corporations, 1t
provided that: Whenever, in the tudg-
msnt of the board OF directors. 1t
shall be deemed advisable, and for
the beneht OF any corporation or
ganized under this act or under any
charter heretofore granted by any
court or by the general assembly Of
Virginia, that 1t shall be dissolved
etc. Then after giving notice as pro-
vtded therein. II two-thirds of the
stockholders IN meeting assembled
shall consent TO dissolution and the
proceedings fled with the clerk of
the state corporation commission and
the commission Is satisfied that the
requirements of the act have been
com piled with, then the commission
shall issue a certificate that such
consent has been f1led and thereuoon
the said corporation shall stand dis
solved etc.
And said act further provides that:
consent m the rffvyotutiou- Tr9 merit
ing or notice thereof shall be neces-
savy, but on fling the said consent in
the office Of the state corporation
commission. the said com mission
shall issue a certificate OF dissolution,
and the said corporation shall there
upon stand dissolved. and the said
board Of directors shall proceed to
settle up and adjust the business and
81. dam
N}ded. however. that no such dissolu-
tjon shall effect the rights Of any
creditor ~ the said corporation exist
ing ~ the time Of such dissolution
New it viii he observed that in the
one ease taat. Whenever {not upon
notice or other condition. in the
Judgement IT the board Of directors
fuot by the act of some other tri-
hunaD and two-thirds of the stock
holders agree thereto, then the COM
mission shall issue Its certificate and
The corporation thereupon stands dis
solved
In the other case: Whenever all
the stockholders shall, consent to n
dissolution the commission shall IS
sue the certificate Of dissolution.
When the event happens not in the
future. not upon notice either before
or q fter the application is filed. hu,
cation - Med, then the commission
shall issue The certificate OF dissolu-
+ terf-
"rrhe duty imposed upon the COM
mission. in my Judgment. is purely
ministerial, and If IL never acted tho
legal status or a corporation woui9
he fixed upon the fling OF the consent
Of the stockholders,
THE law may he unwise but II is
laia fft
ment will doubtless work serious
hardshirs. and ! exceedingly regret
this result. This commission. how
ever. should follow the law MS IL IN
plainly written in the statute. Any
other course would he fraught with
danger 10 all citizens both corporate
arid otherwise The legislature alone
can make laws. and II is supposed
that we will fairly, but firmly, execute
them If the law is wrong the legis-
lature alone must he appealed to.
1T ia necessary to refer only briefly
TO the contention of counsel that this
law is not applicable to public ser
vice corporations The very conten-
ton would seem to admit that if the
law is applicable. than my view is
sound. II appears to me that the
very purpose of the general assembly
In amending section thirty 600 OF
chapter five W was to make the
law applicable to all corporations,
Section one % of chapter five (v)
provides that the provisions of said
chapter shall be construed to apply to
all corporations of this state. organ
ized or to be organized for any law
full purpose. And in section two ca
of same chapter 1t is provided:
EVERY corporation of this state shutf
have power. clause Cd to wind up
and dissolve itself or to be wound up
and dissolved in the manner provided
In this act
What, ask, could he palmer than
this?
The next question is, Did the
stockholders of the Underwater and
Western make application or file con-
sent as the law provides?
1T appears that on May 10 last all
the stockholders OF said corporation
signed the regular form prescribed
by the state corporation commission
for dissolution and filed same with
the commission, but II also apnnars
that because the consent form was
signed John l.. Williams & Sons in
which firm name certain Of the shares
of stock was held. the chairman IN
ha eel t,ot ,nY