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advice of the deputy district attorney, convey- to the estate, a court of equity will not enjoin ed to him through his attorney, and acting in a trespass thereon. good faith, he appeared before the magistrate [Ed. Note. For cases in point, see Cent. Dig. and swore to the information.

vol. 27, Injunction, $ 98.] There is nothing in the record that in any 3. SAME-REMOVAL OF CROPS. way controverts any of these sworn state- Plaintiff may not enjoin defendants from ments, and it must result that it is estab

disposing of a crop from his farm until the final

determination of a forcible entry and detainer lished that defendant in making the charge action between them pending in the Supreme complained of acted in good faith, relying ('ourt, on the ground of their insolvency, where upon the advice of the deputy district attor

they have given an undertaking under B. & C.

('omp. $ 5751. entitling plaintiff to recover, if ney, who had previously been fully and fairly

the judgment is affirmed, double rental value of advised of all of the facts within the knowl- the property during the pendency of the action. edge of the defendant. "The rule seems to be 4. FORCIBLE ENTRY AND DETAINER-APPEALthat where one seeking in good faith the SUFFICIENCY OF UNDERTAKING — I'RESUMPadvice of a public prosecuting officer about

TION. the commencement of a criminal prosecution

Where on judgment for plaintiff in a for

cible entry and detainer action defendants give discloses to such officer all the facts and

a bond under the express terms of B. & C. circumstances within his knowledge, or wlica Comp. $ 5751, guaranteeing payment of twice he has reasonable ground to believe, relat

the rental value of the land should judgment be

affirme:l, in the absence of objections or exing to the offense, and is advised by that

ceptions thereto, the undertaking must be preofficer to institute the prosecution, his de- sumed sufficient for the objects given, and is effense of probable (ause will be established if fectual for all purposes until the final determi

nation of the cause. he acted in good faith upon such advice, even though there were other exculpatory facts Appeal from Circuit Court, Marion County ; which he might have ascertained by diligent William Galloway, Judge. inquiry." Iless v. Oregon Baking Co., supra.

Suit by George J. Wolfer against W. H. An effort was made by plaintiff to challenge Ilurst and another. From a decree dismissdefendant's good faith in prosecuting the ing the complaint, plaintiff appeals. Afplaintiff by attempting to show that the firmed. prosecution was instituted by him, aided by Kircheiner and McHaley, with the object in Carey F. Martin, for appellant. A. M. Canview to force plaintiff to return to them the non, for respondents. several amounts of money he had obtained from them. But it is sufficient to say, with

KING, C. This is a suit to enjoin defendout reviewing the testimony in detail, that

ants from removing or in any manner disthe attempt wholly failed. There was no

posing of a crop of hops from plaintiff's farm testimony offered by plaintiff from which a

until the final determination of a forcible jury could have drawn an inference of bad

entry and detainer action between the par faith on part of defendant in that connec

ties herein pending in the Supreme Court of tion. Each of his witnesses, offered for that

this state. 17 Or. 156, 80 Pac. 419, 82 Pac. purpose, testified that the defendant stated

20. At the time of the filing of the complaint that, while he would like to have his money

a decision, affirming the judgment of the back, he was willing to forego that and to

court below in the proceeding referred to, had prosecute the plaintiff, because he believed

been filed. The mandate was withheld awaithim guilty. The court was in error when

ing the consideration of a petition for rehearit refused the requested instruction.

ing. The complaint alleges, in effect, that It follows, therefore, that the judgment

plaintiff is the owner of and entitled to the should be reversed, and the cause remand

immediate possession of the property involved for such further proceedings as may be ed in the action mentioned; that defendants proper, not inconsistent with this opinion.

forcibly and wrongfully took possession of the premises, which possession they wrong

fully and unlawfully retain and hold by force, (50 Or. 218)

for the purpose of securing and applying to WOLFER V. HURST et al.

their own use the crop of 1905, consisting of

10,000 pounds of hops, valued at $1,500, with (Supreme Court of Oregon. Aug. 6, 1907.)

the intention of selling and removing the 1. APPEAL-REVIEW-HARMLESS ERROR.

same from the land and beyond the jurisdicPlaintiff may not complain on appeal of an

tion of this court, before the mandate of the order modifying a temporary restraining order Supreme Court can possibly be procured; without the notice to him expressly conferred

that defendants have been and are cultivating by B. & C. Comp. $ 422, where he is not entitled to the injunction.

the crops in an improper manner and willful[Ed. Note. For cases in point, see Cent. Dig.

ly and maliciously tearing up and injuring vol. 3, Appeal and Error, § 4035.]

the hop vines, thereby and otherwise causing 2. INJUNCTION-GROUNDS-TRESPASS.

irreparable injury to the estate; that the apIn the absence of a showing that the acts

peal from the proceedings in the former case complained of amount to an irreparable injury i was taken, and the petition for rehearing

filed, for the purpose of delay, in order to affidavit, that the defendants had loaded the defraud plaintiff, as aforesaid ; that in tak- disputed hops, for shipment, on cars of the ing the appeal the undertaking given was only Southern Pacific Railway Company, an order for the sum of $250; that such sum is in- was made by the court, to the effect that desufficient to protect the plaintiff in damages fendants return the same to the Warehouse and loss which will result from the acts com- of said railway company at Hubbarı, Or., to plained of; that defendants are insolvent be left there until the final determination of and unable to respond in damages, and that the proceedings on appeal. From the decree the rental value of the premises for the year dismissing the complaint plaintiff appeals. 190) was about $1,300. On the facts allegedl It is maintained by the plaintiff that the a decree is asked to the effect that plaintiff court erred in modifying the temporary rehe declared the owner of the alleged crop straining order, without notice having been

om any claims or liens thereon; that given to plaintiff in accordance with B. & defendants be enjoined from selling ordlis- C. Comp. § 422. The effect of the action of posing of the crop grown on the premises in- the court in dissolving or modifying an orvolved in the former action, or in any man- der, under the circumstances named, can onner incumbering the same with a mortgage ly be material when it shall be found that or other lien, or from removing any part plaintiff is entitled to such relief. The questhereof from the jurisdiction of this court, tion, then, for determination and the only until the final determination of this suit, point urged, necessary to be considered here during which time it was prayed that defend- under the record, is: Had plaintiff a plain, ants and their agents be enjoined from in any speedy, and adequate remedy at law? If manner molesting plaintiff's property; that answered in the affirmative, it disposes of pending the final determination herein a re- the point mentioned, as well as the entire ceiver be appointed to take possession of the case; for, if plaintiff has such remedy, the property, with power to employ the neces- error suggested, if it can be termed such, sary help and to harvest and dispose of the could not have been prejudicial to plaintiff, crops, as the court might direct. ''pon the nor would the action of the court in dismissfiling of the complaint, a temporary restrain- ing the complaint be erroneous. Whatever ing order was issued, in accordance with the may be the rule in other states, it is settled request, except as to the appointment of a re- here that, in absence of a showing to the efceiver. An answer, by way of a plea in abate- fect that the acts complained of amount to ment, was filed, to which a demurrer was sus- an irreparable injury to the estate, a court tained and the plea dismissed. An answer of equity will not enjoin a trespass therewas then filed to the merits, admitting the on. Moore v. IIalliday, 13 Or. 213, 72 Pac. existence of the former proceeding and that 801, 99 Am. St. Rep. 724; IIume v. Burns it was in the Supreme Court, alleged the facts (decided July 9, 1907) 90 Pac. 1009. leading to the institution of the forcible entry

The evidence does not disclose that any perand detainer action; that defendants had oc- manent injury was either done or threatened ("upied the premises during the pendency of to the premises. The manner of caring for the action throughout the different courts the hops and cultivation thereof is not shown in good faith; had expended $8757 in (ultiva- to be such as would result in permanent intion, growing of the crop, etc., thereon; that jury to the estate. The testimony bearing on the hop crop had been picked by them at the the subject indicates only a difference of time of the commencement of this suit, and opinion as to the proper manner in which that plaintiff had no right nor title thereto. such hops should be handled ; and, whatever 1o the affirmative allegations of the answer may have been the proper method of cultivaa clemurrer was filed and sustaineil, on the tion thereof, no damage of any serious conground that they did not state facts sufficient sequence is established, either actual or to constitute a defense. On an ex parte threatened. It is provided by our statute motion of the defendants the temporary re- that, when an appeal is taken in a forcible straining order was modified, by permitting entry and cletainer action, “if judgment be the removal of the hops from the hophouse rendered against the defendant for the restion the premises, which were directed to be tution of the real property described in the stored in a warehouse of the Southern Pacific complaint, or any part thereof, no appeal shall Railway Company at Hubbard, Or., a receipt be taken by the defendant from such judy. taken therefor, and immediately deposited ment until he shall, in addition to the underwith the clerk of the court, awaiting the final taking now required by law upon appeal, give determinat on of this suit. Testimony was an undertaking to the adverse party, with taken before the court, and, based upon find- two sureties, who shall justify in like manings therefrom to the effect that defendants ner as bail upon arrest, for the payment to were not insolvent, and that plaintiff has a the plaintiff of twice the rental value of the plain. speedy, and adequate remedy at law, real property of which restitution shall be a decree was entered dismissing the com- adjudged from the rendition of such judgplaint. At the time the decree of dismissal ment until final judgment in said action, if was entered, it appearing to the court, b. such judgment shall be affirmed upon ap

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peal.” B. & C. Comp. $ 5754. It could make, determination of the rights of the parties no difference, therefore, as to the alleged in- involved, thereby making an injunction unsolvency of the defendants in view of the necessary to secure him against any loss ocundertaking provided by the statute, which casioned during the interim, except where irentitled plaintiff to recover double the rental reparable injury to the estate is shown. value of the property for the time during The question as to whether plaintiff is enwhich the action was pending. The under- titled to recover the value of the crop or be taking given for that purpose was executed left solely to his remedy on the undertaking, by the defendants and two sureties, and guar- or as to whether it is in his discretion to reantees payment of twice the rental value of ly upon either, is not necessary to a decithe land, in the event of the court adjudging sion herein. But should it be assumed that restitution to plaintiff. While the sureties plaintiff, after obtaining judgment ousting only justify in the sum of $500 each, no lim- defendants from the land, upon which the itation is placed on their liability under the crop was raised, was entitled to the possesinstrument. No objection appears to have sion of the produce grown thereon, during the been made to the sufficiency of the undertak- pendency of the proceedings, he would still ing, nor is it alleged or attempted to be shown have an efficient remedy at law. Parsons v. that the sureties are insolvent. In the ab- Hartman, 25 Or. 547, 37 Pac. 61, 30 L. R. A. sence of objections or exceptions thereto, the 98, 12 Am. St. Rep. S03; Moore v. Halliday, undertaking must be presumed sufficient for supra; Meyer v. Roberts (Or.) 89 Pac. 1051; the objects given, and is effectual for all Jones v. McKenzie, 122 Fed. 390, 58 C. C. A. purposes until the final determination of 96. the cause mentioned. 47 Or. 156, 80 Pac. 419, It follows from any view that might be 82 Pac. 20. It is evident that the object of taken, under the evidence, that plaintiff has this statute was to protect the owner against an ample remedy at law, for which reason loss in a case of this kind, while the proceed

the decree of the court below should be af. ings are pending on appeal and until the final firmed

ment sustaining defendant's demurrer, plaintiffs appeal. Reversed and remanded.

Lawrence & Robertson and E. A. Walton, for appellants. D. H. Wenger and E. B. Critchlow, for respondent.

(32 Utah, 497)

GAREY et al. v. ST. JOE MINING CO. (Supreme Court of Utah. June 26, 1907.)

On Rehearing, July 17, 1907.) 1. CORPORATIONS-CHARTER-NATURE OF CONTRACT.

á corporation's charter is a contract between the state and the corporation, between the corporation and the stockholders, and between the stockholders and the state. 2. SAME-- AMENDMENT-POWER OF STATE.

In granting charters or authorizing the creation of corporations under general laws, the state may expressly reserve the power of alteration, amendment, or repeal, and such reservation becomes a part of the contract bei ween the state and the corporation, and is binding, not only upon the corporation, but also upon every individual stockholder.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 12, Corporations, $ 119.] 3. SAME.

Under the constitutional provision that all laws relating to corporations may be amended or repealed, and all corporations doing business in the state may as to such business be regulated or restrained by law, the state may not amend charters of existing corporations, so as to change the fundamental character of the corporation, impair the object of the grant or rights vested thereunder, nor amend them in such way as will impair the contractual relations or rights of the stockholders among themselves, or between the corporation and its stockholders; but the Legislature has the right to amend the charter or laws relating thereto, so far as the state is interested, to modify any right, privilege, or immunity granted by the state, to repeal the charter or all laws under which it was granted, to take away altogether the franchises and privileges granted under it, and to make such reasonable amer.dments or alterations deemed necessary to carry into effect the purposes to the grant or to protect the rights of the public, of the incorporation, and its stockholders, when such amendments or alterations will not defeat or substantially impair the object of the grant or any vested rights.

[Ed. Yote.--For cases in point, see Cent. Dig. vol. 12, Corporations, $ 119.) 4. CONSTITUTIONAL LAW - OBLIGATION OF CONTRACTS-CORPORATIONS.

A statute authorizing majority stockholders to amend the articles of incorporation against the consent of the minority, so as to make nonassessable full-paid capital stock assessable and subject to sale for such assessment, affects the contractual relations of the stockholders among themselves, and is an impairment of the obligation of a contract, within the prohibition of the federal Constitution. 5. CORPORATIONS — ARTICLES – RIGHT TO AMEND-AFFECTING NONASSESSABLE STOCK.

Under Rev. St. 1898, $ 338, as amended by Sess. Laws 1903, p. 80, c. 94, providing that articles of incorporation may be amended in any respect conformable to the state laws by a vote representing two-thirds of the outstanding capital stock, provided the personal or individual liability of full-paid capital stock for assessments, etc., shall not be changed without the consent of all the stockholders, such majority stockholders may not amend the articles of incorporation against the consent of the minority, so as to make nonassessable full-paid capital stock assessable.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 12, Corporations, $ 124.)

Appeal from District Court, Third District; C. W. Morse, Judge.

Action by Ellen Garey and others against the St. Joe Mining Company. From a judg.

91 P.-24

STRAUP, J. This action is brought by plaintiffs against the defendant, a mining corporation organized under the laws of the state of Utah, to restrain it from selling certain full-paid capital stock of the corporation owned by plaintiff's for the nonpayment of an assessment levied against the stock by the board of directors. It is alleged in the complaint, among other things, that the capital stock of the corporation is divided into 1,000,000 shares, of the par value of $1 each, of which the plaintiffs are the owners of 149,881 shares; that all the outstanding capital stock is fully paid; that by the terms of the original articles of agreement of incorporation it was agreed by all of the incorporators that "the stock of this company shall be nonassessable"; that under the laws of Utah in force at the time the articles of agreement were made the articles could not be amended so as to make the full-paid capital stock of the corporation assessable without the consent of all the stockholders, and that defendant issued and sold to its stockholders its fully paid and nonassessable shares, represented by certificates signed by its officers, and that each certificate on its face provided that the shares were and are nonassessable; that in pursuance of a call made by the board of directors a stockholders' meeting was held on February 5, 1907, for the purpose of amending the articles so as to authorize the board of directors, for the purpose of paying the expenses, conducting the business, and paying the debts of the corporation, to levy and collect assessments in the manner and form as provided by law, and so that such assessments might be levied and collected before the working capital stock of the corporation was exhausted; that at said meeting 819,636 shares of the outstanding capital stock were represented, of which 635,464 shares voted for the amendment and 184,172 shares voted against the amendment, 122.364 shares of the outstanding capital stock not being represented, the holders of which, it is alleged, withheld their consent to the amendment by not voting for it, and that the holders of the 635,464 shares, in violation of the terms of the articles of agreement of incorporation, wrongfully and illegally assumed to declare the pretended amendment approved and adopted; that in pursuance of the amendment and of the pretended authority conferred upon them thereby, the board of directors, on February 15, 1907, levied an assessment of two cents per share upon all the outstanding full-paid capital stock, payable iminediately and declared it delinquent on the 25th day of March, 1907, and directed that delinquent stock be advertised and sold on the 16th day

of April, 1907, unless the assessment was the individual property of any holder of fullsooner paid; that the levy of the assess- paid capital stock of any corporation organ. ment was illegal and wrongful, and that, ized since March eighth, eighteen hundredi unless restrained, the defendant will sell and ninety-four, or that hereafter may be plaintiffs' stock for nonpayment of the as- organized, under the laws of this state, exsessment. The court sustained the defend- cept as otherwise expressly provided in this ant's demurrer to this complaint for want of title, shall not be liable for the corporate facts. The correctness of this ruling is ques- obligations, nor shall assessments be levied tioned by this appeal.

on such stock for any purpose whatever, exIt is alleged that the defendant was organ- cept to such extent and in such manner as ized in the year 1897. It was organized un- may be expressly provided in the articles of der the laws of 1888 and 1891. So far as incorporation." Section 33t: "The full-paid concerns this case the laws of 1896 relating capital stock of any corporation organized to corporations are a mere re-enactment of since March eighth, eighteen hundred and the laws of 1888, and in no manner repealed ninety-four, or that hereafter may be organor affected the laws of 1891. The laws of ized uuder the laws of this state, shall not 1888, as re-enacted in 1896, provided that the be assessable for any purpose whatever, exname of the corporation might be alterel, cept to such extent and in such manner as the number of its directors or otficers chang- may be expressly provided in the articles of ed, and that the articles of agreement of in- incorporation: provided, that if such stock Curporation might be otherwise changed or is made assessable and the manner of levyamended, provided such amendment did not ing the assessment is not provided for, it alter the original purpose of the incorpora- shall be levied in the inanner and form beretion, but no such change should be made ex- inafter prescribed.” Section 338, Rev. St. cept by a vote representing at least two- 1898, provides: "The articles of incorporathirds of the capital stock at a stockholders' tion of any corporation now existing, or that meeting called for that purpose. Section hereafter may be organized under the laws 2393 of the Compiled Laws of Utah of 1888 of this state, may be amended in any respect provided that: “Any person who is the hold- conformable to the provisions of this chapter er of full-paid up capital stock, shall not be by a vote representing at least two-thirds of liable for any assessments or for any indebt- the outstanding capital stock thereof at a edness of the corporation otherwise than by stockholders' meeting called for that purpose, sale of his or her stock, as herein provided, as hereinafter prescribed: provided, that the unless distinctly provided for in the articles original purpose of the corporation shall not of incorporation, which articles, or incorpo- be altered, nor shall the capital stock be diration shall not be changed in this respect minished to an amount less than fifty per without the consent of all the stockholders cent. in excess of the indebtedness of the corin writing." This section was amended by poration; and provided further, that the liathe Legislature in the year 1894 (chipter 70, bility of the holder of full-paid capital stock p. 119, Sess, Law's 189+) to read: "Any per- for assessments or for the indebtedness of son who is the holder of full-paid up capital the corporation shall not be changed without stock of any corporation hereafter organized the consent of all the stockholders." In 1903 under the laws of l'tah Territory, shall not (Sess. Laws 1903, p. 80, c. 91) the Legislature be liable for any assessments upon such capi- amended section 338 of the Revised Statutes tal stock or for any indebtedness of the cor- to read: “The articles of incorporation of poration, nor shall any assessment be levied any corporation now existing, or that hereupon such capital stock for any purpose ifter may be organized under the laws of whatever, nor shall any such holder be liable this state, may be amended in any respect for assessments or indebtedness of the cor- conformable to the laws of this state by a poration, except it shall be provided in the vote representing at least two-thirds of the articles of incorporation or the agreement in outstanding capital stock thereof at a stockwriting specified in section 2208 subd. 2, of holders' meeting called for that purpose as said compiled Laws, that such capital stock hereinafter prescribed: provided, that the shall be liable for assessments or for the original purpose of the corporation shall not indebtedness of the corporation, then the cor- be altered, nor shall the capital stock be diporation shall be and is authorized to levy minished to an amount less than fifty per assessments upon such stock, to be collected (cont in excess of the indebtedness of the coras in the articles provideil. The articles of poration; and provided, further, that the incorporation, in this respect, shall not be personal or individual liability of the holder changed without the consent of all the stock- of full-paid capital stock for assessments or holders.” The section as amended was not for the indebtedness or obligations of the repealed nor modified by the Laws of 1896. (orporation shall not be changed without the This section as amended was substantially consent of all the stockholders." Section 1, incorporated into sections 331 and 354 of the art. 12, of the Constitution of Utah, adopted Revised Statutes of 1898, which are as fol- in 186, is as follows: "Corporations may be lows: Section 331: "The property of the formed under general laws, but shall not be corporation and the unpaid stock shall be created by special acts. All laws relating liable for the debts of the corporation; but to corporations may be altered, cmended or

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