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Brown v. Florida Southern Railway Co.-Argument of Counsel.
allotted, why the importuning him for his power of attorney, and when obtained what power did Francis and his confederates have to entirely do away with appellant's interests and give it into hands of strangers, without consent of owner or consideration therefor?
16th. After the fraudulent allotment (which was an effort to deprive appellant of all his rights, except those obtained prior to 12th of August, 1880,) Francis and others of those present at the allotment told Brown that he was entitled to one-third of Candler's stock, which was $113,000 worth of stock, and promised to arrange matters so as he, Brown, would receive that amount, but finally declined. So the prime movers in the fraud acknowledged the wrong perpetrated on appellant, and agreed to repair it, and afterwards recalled their promise to make amends. They declare now that appellant shall have no more stock in said road and bill so alleges. High on Receivers, Secs. 4 and 366; Kerr on Receivers, Secs. 8, 9, 10; 18 Grattan, 819; Green's Brices Ultra Vires, 671 to 676, inclusive, and notes; 41 Ga., 454.
17th. The bill also alleges that at time stock was allotted, to-wit: 12th August, 1880, all of incorporators, or those entitled to stock, were not represented. J. E. Young, J. W. Hendry, D. Hughes, F. A. Hendry and J. E. Lipscomb were not present, parties named in the act.
18th. For the purposes of this argument the demurrer admits the allegations of the bill to be true, and it sets forth positive violations of appellant's rights. Now what are the objects and purposes of an injunction ? 12 Fla., page 100.
As to appointment of a receiver see High on Receivers, Secs. 4 and 366; Kerr on Receivers, 8, 9, 10; 18 Gratton, 819; Green's Brices Ultra Vires, 671 to 676, inclusive, and rotes; 41 Ga., 454.
Brown v. Florida Southern Railway Co.- Argument of Counsel.
The charges of danger, fraud and irresponsibility are made and alleged against defendants. 5 Cal., 496; II Ga., 597; 22 I11.. 79, 84; 9 Gill, (Maryland) 472, 477, 478 and 480; i Maryland Chancery, 489.
Taylor & Sanchez for Florida Southern Railway Company.
That the court below had a right to dissolve the injunction upon motion simply before the coming in of the answer of the defendant where the bill upon its face was wanting in equity. High on Injunctions, $880; Kneedler vs. Lane, 3 Grant's Cases, 523.
If it can be shown that there was and is no equity in the complainant's bill, then the court was right in dissolving the injunction; and was also right in refusing to reinstate that injunction; and the introduction in the shape of exhibits of any amount of matter aliunde the bill itself, upon a motion to reinstate an injunction improperly granted upon a bill wanting in equity, will not help that defective Lill. If the bill was wanting in equity, then the defendant's demurrer thereto was well taken and should have been sustained, and the court erred in overruling it. The real and only question then that presents itself for decision by this court, so far as the defendants are concerned, is whether or not there is any equity in the complainant's bill. The decision of this question disposes effectually of Loth appeals. Is there any equity in the bill?
The complainant's right to an injunction, such as he prays for in his bill herein, depends entirely upon his right to demand stock and lands as claimed by him in his bill; if he has no legal right to "stock or lands,” they being the very gist and subject-matter of his bill, then he has no right to enjoin, or otherwise interfere with the affairs of the company. "Stock and lands” being the sole subject-matter of Brown v. Florida Southern Railway Co.-Argument of Counsel.
his bill, if the complainant fails to show that he has any interest in this stock and lands, then his bill is demurrable fo: want of interest in that subject-matter. Story's Eq. Plead., 6th Ed., $503, and authorities there cited; High on Injunctions, p. 8, §9; 35 Md., p. 15.
If the appellant is a legally incorporated company, with its full quota of officers regularly and completely organized, and, as the bill alleges, is going ahead building a railroad, the object for which it was created, and is in other respects carrying forward and exercising its legitimate corporate powers, as only a completely organized corporation can do, then the complainant's boasted office and rank of an “original incorporator" or "promoter" of the enterprise has ceased and determined; it is functus officio; otherwise what becomes of the doctrine of perpetual succession in corporations; and what would become of the right of bona fide subscribers to the stock of said corporation, conferred upon them by the statute of our State, to "vote at elections” for officers that are necessary for the perpetuation of the institution, and by their votes changing such officers from time 10 time; and surely it cannot be contended that Mr. Brown would always be voted for at these elections of officers, and kept perpetually a member of said corporation simply because his name was on the original articles of incorporation. His position or office of an original “organizer” of the institution clearly ceases the moment the company becomes completely organized and in working order. On the other hand, if the company is not yet legally organized or incorporated, he, as an original promoter of the scheme, has no powers or rights, solely, as an incorporator, except in concert with the other original promoters of the enterprise, and then only in a direction looking to the organization, simply, of the corporation. Certainly the corporation, as such, nor the promoters or organizers of it, can acquire any rights un
Brown v. Florida Southern Railway Co.--Argument of Counsel.
uil it comes completely into existence, a full-fledged corporation. According to the allegations in the complainant's bill itself, the company is incorporated de facto, and has been also recognized by the State authorities as such; and the complainant recognizes its autonomy by suing it as a corporation, by its corporate name, in a court of justice. If it is incorporated, the incorporators have ceased to exist as such; and its integrity as a corporation de jure can only be called in question by a proceeding in the nature of a quo warranto, and not by a collateral proceeding. Pierce on Railroads, 27; 22 Ohio St., 354; 9 R. I., 513; 55 Barb.. 344; 48 Vt., 266; 20 La. An., 489; 15 Wall., 478; Angell & Ames on Corp., Ch. 21 ; 24 Vt., 465; 9 Wend., 351; - Johns., Ch. 379; Ang. & Ames on Corp., 664-5; 10 G. & J., 346; 104 Mass., 378.
Neither can the acts nor title of its officers be questioned collaterally in a suit at law or in equity. Pierce on Railroads, page 26; 5 Stewart, N. J., 236; 55 V. H., 48; 12 N. H., 205; 10 N. H., 58; 39 Maine, 587; 68 Maine, 81; 65 Maine, 536; 2 Doug., Mich., 124; 75 Ill., 113; 70 N. C., 348; 35 Mo., 13; 15 Ohio State, 225; 34 Ohio St., 46, 58; 13 Ind.. 404; 2 Ken. Com., 295.
Nowhere in either the original or amended bill does the complainant, J. B. Brown, allege that he ever subscribed for any stock, or that he ever attempted to subscribe for any, or that he ever paid for or contracted for any stock, or that he was ever promised any stock by any person or persons having competent authority to make such promise, or otherwise; neither does he state any factor facts in his bill that go to show that he is entitled to any stock whatever. He bases his entire claim to “stock and lands” upon the farcical fact “that he is one of the twelve parties named in the criginal articles of incorporation," and in the act granting lands to said company.
Brown v. Florida Southern Railway Co.-Argument of Counsel.
Upon this state of facts, patent upon the face of his bill, the complainant, J. B. Brown, is no more entitled to capital stock than any other gratuitous solicitor thereof, and for the same reasons he is not entitled to the remotest interest in any land that may be granted to the corporation; and has no concern whatever in any disposition of it, that the company may see proper to make. His only right as an incorporator, or "original promoter" of the enterprise, is that of acting with, and as a member of the Board of Incorporators “in properly organizing" the company.
After the company is once completely organized it may be truly said that no one is a “member of the corporation" except such as are bona fide stockholders. Our statute, under the provisions of which this corporation came into existence, makes it so, since it provides that no one can be elected to the office of President, Director or to any other office in the corporation, except he be a stockholder; and the same law provides that the right of a party to vote at elections shall be regulated by his ownership of stock, towit: by the number of shares he owns, &c. Laws of Florida, 1874, Ch. 1987; Laws of Florida, 1879, Ch. 3165.
The only mode left, then, by which the complainant, J. B. Brown, can become a member of this corporation is to become the owner bona fide of stock thereof; and the only mode by which he or anyone else can become the owner bona fide of stock is by "subscribing and paying' therefor; and this he does not pretend in his bill to have done, neither cioes he even offer to do so in his bill.
Mr. Justice Hunt thus states the law, and it is as applicable to incorporators as to Directors: “The capital stock uf a moneyed corporation is a trust fund, of which the Directors are the trustees. It is a trust to be managed for the benefit of its shareholders during its life, and for the benefit of its creditors in the event of its dissolution. This