Taggart v. Western Maryland Rail Road

Bowie, C. J.,

delivered the opinion of this Court.

The General Assembly, at January session, 1852, incorporated “The Baltimore, Carroll and Frederick Rail Road *585 Company,” with a danse prescribing certain preliminaries usually observed in opening the hooks and taking subscriptions for stock, prior to the organization of a company, among others, the pre-payment of one dollar per share on every share subscribed; also requiring the road therein contemplated, to he commenced within three years and finished within ten years from- the passage of the Act, otherwise the same should he null and void. Books were opened by the Commissioners, the requisite number of shares subscribed, a Board of Directors and a President were elected, and the company fully organized.

After this organization, the appellant on the 28th April, 1853, subscribed for ten shares, in one of the subscription hooks, held by a Mr. Johnson, upon the terms and conditions prescribed therein and the charter, with this condition annexed : “provided the said contemplated road should he built on the then present track of the then existing branch to ‘Green Spring,' of the Baltimore and Susquehanna Rail Road ;” hut did not pay the sum of one dollar per share, required by the charter to be paid to the commissioners, at the time of subscribing.

The name of the corporation was subsequently changed by Act of Assembly, to that of “The Western Maryland Rail Road Company.” The defendant's subscription, with others, was returned to the stockholders, and classified among the conditional subscriptions. The construction of the road not having been commenced within the time prescribed by the original charter, the Act of 1856, ch. 289, was passed, waiving all claims of forfeiture, by reason of the company’s failure to comply with any of the provisions of the Act of incorporation, anfi allowing six years for the commencement, and twelve years from the passage of the Act, for the completion of the road.

The “Green Spring” branch of the Baltimore & Susquehanna Rail Road was adopted by the appellee on the 31st *586 of March, 1857, and the road put under contract for construction. No calls were made for payment of subscriptions until the 25th of June, 1857. The appellee never indicated, affirmatively, any intention of abandoning the work of the appellant; never affirmatively withdrew his subscription, or attended any meeting of the stockholders or subscribers to the stock.

Several calls for instalments having been made and refused, this action was brought on the 1st of February, 1861. The prayers offered by the plaintiff, (now appellee,) and granted by the Court, present three negative propositions :

1st. That the change in the corporate name of the appellee by the Act of 1853, ch. 37, is not a bar to the present action.

2d. That upon the finding of the facts therein before specified, the non-payment of one dollar per share by the defendant, at the time of his supposed subscription", is not of itself a bar to the present action.

3d. That the failure to commence the work within three years from the Act of incorporation, (1852, ch. 304,) the Act of 1856, ch. 289, being duly passed and accepted by the stockholders of the plaintiff, is not a bar to this suit.

. The first proposition is admitted, but the second and third propositions are specially denied by the prayers of the defendant, which were rejected by the Court, and constitute the ground of this appeal.

The first and third prayers of the appellant are the converse of the appellee’s second ; the appellant’s second prayer, of the appellee’s third.

The learned counsel differ as to the range of the first and third prayers. The appellee contends, they present only the question of the effect of the non-payment of the cash instalment of one dollar at the time of subscribing ; on the other hand, it is insisted they embrace the condi *587 tional character of the subscription, and the validity of such. It is observable that these prayers refer specifically to the subscription, in the following terms: “and that the defendant made the subscription offered in evidence by the plaintiff',” etc., as one of the facts upon which the proposition of the defendant was based. This specific reference in each of the prayers under consideration, was not merely introductory to the other facts connected with it, but called for an examination of the subscription itself, its qharacter and conditions.

The subscription of the appellant is not set out in terms in the bill of exceptions, but referred to as a conditional subscription. In the nar and appellee’s brief, it is set out “ in iotidem verbis,” as therein before cited.

Assuming that the evidence, offered by the plaintiff (and refused to the defendant in his prayer,) corresponded with the subscription set out in the nar, the legal sufficiency of such subscription, was necessarily brought before the Court, by the first and third prayers of the defendant, whether the right of action depended on the prepayment of the deposit, or the conditional character of the subscription itself. The supposed contract being in writing, its validity was a question for the Court, and however the latter view may have been overlooked in the discussion of the former, it seems necessarily involved in the disposal of these prayers.

The first point presented by the prayers arises under the 3rd section of the Act of 1852, ch. 304, incorporating the appellee, which directs that “upon every subscription, there shall be paid at the time of subscribing, to the company or their agents, appointed to receive such subscription, the sum of one dollar on every share subscribed.” As there are other cases involving the construction of this section, we are requested to interpret it, not only as it may operate upon the facts in this case, but upon subscrip *588 tions made to commissioners or their agents, prior to the organization of the company. It is contended that this clause applies peculiarly and solely to the latter class of subscriptions, as to which, it is only directory and not indispensable. The class of cases maintaining the contrary, it is insisted, originated in the decision of the case of Jenkins vs. The Union Turnpike Company, by the Court of Errors in New York, 1 Carr’s Cases in Error, 86, which was contrary to the better opinion (as it said) of the Supreme Court ot New York, and make only a “ suite d’erreurs.” The defect or vice of the original decision is not pointed out, but it is impeached as emanating from a Court, constituted of laymen, as well as lawyers, and of less authority than the tribunal whose decision it reviewed and reversed. A decision not universally adopted, but questioned, doubted and overruled. We are invoked not to follow such precedents, upon a mere comparison of facts, but to apply the judicial mind to a consideration of the principles of law applicable to them. With this earnest exhortation in view, we have examined the series of cases referred to, and will concisely state the result.

The controlling principle, on which those cases are founded is, that all charters or Acts under which highways are erected, and franchise and privileges conferred, are deputations of public power or authority to be strictly construed. The subscription for stock must be founded on a valid consideration, and constitute a contract binding on both parties ‘‘ eo instanti. ’’ The promise of the subscriber being based on the promise or expectation of becoming a stockholder, if the-right to the stock is not consummated by payment of the deposit, the obligation to pay the subscription is not binding.

Chancellor Lansing, treating the Act, under which the subscription was made in that case as a public law, the provisions of which he must notice officially whether *589 pleaded or not, thus defines the duties of the commissioners : From the record it appears, that commissioners were appointed by the statute, to perform certain duties particularly described. They were to receive subscriptions and to receive for the benefit of the defendants (in error) $10 on each share of the stock of their company. The plaintiff (in error) subscribed, hut it does not appear that he paid. At the time these steps were taken, the corporation described in the Act, was not in existence. It was incapable of contracting. The acts to he performed by the commissioners were merely preparatory to its creation. To give effect to their acts, their power must be strictly pursued. * * They were directed to exact from the persons who were to he admitted members of the corporation, both subscription and payment, as a condition precedent to their admission. If they omitted either to subscribe or to pay, they did not come within the terms of admission. 1 Caine’s Cases in Error, 94.

Tilghman, C. J., in the case of The Hibernia Turnpike Company vs. Henderson, 8 Serg. & Rawle, (which was a subscription to commissioners before the organization of the corporation,) enlarged upon the principles of public policy, which required a rigid adherence to the letter of the law, and strict compliance with the requisition of prepayment, in all subscriptions made to commissioners. " If (he says) persons are permitted to subscribe without the previous payment of iivo dollars a share, large subscriptions may he made, which would not otherwise have been made, by those who are anxious to give a direction to the road, which may benefit themselves, at the expense of the public. The case is reduced to this simple question : Can a contract he enforced in a Court of Justice, which was made in violation of an Act of Assembly. It is not the first time the question has been asked in this Court, and it has received but one answer : " It cannot he enforced.” lie refers to the decision of the *590 Court of Errors in New York, 1 Caine’s Cases in Error, as settling the law in that State.