Elizabethtown Gas Light Co. v. Green. presumption should be not that he acted fraudulently, but that he acted honestly and placed the money in the money drawer of the firm. Waiving this presumption, Samuel testifies that he did apply this money to the uses of the partnership, and his statement is not disproved. This charge against Samuel, therefore, is also erroneous. We are of opinion that, under the evidence, the allowance to Lydia Van Horn, for her services to the firm, should be reduced to $5 per week for the whole time during which she is entitled. to be paid. The allowance which has been made to Harry, the son of Richard, must stand. That is an executed matter and must be considered as finally settled. The decree below should be reversed and modified in accordance with the foregoing views. Costs are allowed to the appellant. For affirmance-None. For reversal-THE CHIEF-JUSTICE, DEPUE, DIXON, GARRISON, MAGIE, REED, VAN SYCKEL, WERTS, BOGERT, CLEMENT, KRUEGER, SMITH-12. ELIZABETHTOWN GAS LIGHT COMPANY, appellant, ย. GREEN et al., respondents. On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in 1 Dick. Ch. Rep. 118. Mr. Richard V. Lindabury and Mr. Frederic W. Stevens, for the appellant. Mr. James R. English and Mr. Joseph Cross, for the respondents. 49 329 52 144 49 329 55 374 PER CURIAM. Elizabethtown Gas Light Co. v. Green. The decree below affirmed for the reasons given by ViceChancellor Van Fleet. MAGIE, J. (dissenting). The appellant, the Elizabethtown Gas Light Company, was the complainant below. Its bill of complaint founded its claim to equitable relief upon the provisions of "An act to incorporate the Elizabethtown Gas Light Company," approved February 19th, 1855, whereby certain corporate powers and privileges were conferred, under which it alleged appellant had expended large sums of money in erecting a plant for the manufacture, distribution and sale of illuminating gas in the city of Elizabeth. The bill further alleged that James S. Green and others (the respondents) claimed a right to manufacture, distribute and sell such gas in that city under powers conferred by "An act to incorporate the Metropolitan Gas Light Company of Elizabeth," approved February 22d, 1870, and a supplement to that act, approved February 26th, 1873, and charged that respondents threatened and had commenced to erect works and lay pipes with intent to engage in that business in Elizabeth, in competition with appellant. The bill further charged that respondents' claim in that behalf was false and fraudulent. The prayer of the bill was for an injunction restraining respondents from exercising, to appellant's prejudice, the powers and privileges claimed by them under the two acts last mentioned. Respondents' answer admitted that they designed and had commenced to do the acts charged in the bill, and claimed the right to do those acts under the provisions of the legislation above cited. They denied the charges of fraud. Issue was joined on the answer, and, the cause having been brought to hearing on the pleadings and proofs, a decree was made denying the relief prayed for and dismissing the bill. The appeal is from that decree. Our inquiry thereon must be directed to determine (1) the Elizabethtown Gas Light Co. v. Green. respective rights of the parties in the matter involved in this litigation, viz., the manufacture and vending of illuminating gas under legislative grant in the city of Elizabeth, and (2) whether appellant, if its rights in that respect have been invaded by respondents, is entitled to the intervention of a court of equity by its restraining process. The scope of this inquiry is much narrowed by a general agreement in respect to the facts and the main principles applicable to the case, as exhibited in the excellent briefs furnished by the counsel for both parties. There is no dispute that appellant, by the act which conferred on it corporate life, acquired a right to manufacture gas, to lay pipes for its distribution through the public streets of Elizabeth and there to distribute and sell such gas, and that, under such rights, it has expended much money in erecting works and laying pipes and is now engaged in that business. It is conceded to have been settled in the courts of this state, that appellant's rights thus acquired are, as against all persons but the state and its grantees, exclusive in their nature, and that an invasion of those rights by any, not possessing authority either de jure or de facto from the state, will entitle appellant to relief by the use of the injunction power of a court of equity. Pennsylvania R. R. Co. v. National R. Co., 8 C. E. Gr. 441; Delaware and Raritan Bay R. R. Co. v. Delaware and Raritan Canal &c., 3 C. E. Gr. 546; Jersey City Gas Light Co. v. Dwight, 2 Stew. Eq. 242. It is also undisputed that the acts incorporating the Metropolitan Gas Light Company of Elizabeth confer ample authority to engage in the business of making, distributing and selling gas in Elizabeth, in competition with appellant, and that a company organized under those acts would not, in exercising the powers thereby conferred, invade any right of appellant. It is further treated as settled by our cases, that the regularity of the organization of a corporation cannot be questioned collaterally in any court, at the instance of a private person, and that irregularities and omissions in such organization cannot be taken advantage of in a proceeding instituted by a private person, but Elizabethtown Gas Light Co. v. Green. only in a direct proceeding in behalf of the state, inquiring by what warrant the corporate grant is being used. National Docks R. R. Co. v. Central R. R. Co., 5 Stew. Eq. 755; Stout v. Zulick, 19 Vr. 599; West Jersey R. R. Co. v. Cape May &c., 7 Stew. Eq. 164; Terhune v. Midland R. R. Co., 11 Stew. Eq. 423; Jersey City Gas Light Co. v. Consumers' Gas Co., 13 Stew. Eq. 427; New Jersey Southern R. R. Co. v. Long Branch, 10 Vr. 28.. With these facts ascertained and these rules conceded, it is evident that the questions for determination are, first, whether respondents in doing and threatening to do the acts claimed in the bill and admitted in the answer, have a right to claim under the Metropolitan company and to exercise the powers conferred on it, and, second, whether that company has acquired a corporate existence, such as will enable it to exercise such powers in competition with appellant, or is so organized as to forbid collateral inquiry on complaint of appellant and the intervention of a court of equity by injunction. Some contest is made with respect to the relation of respondents to the Metropolitan company. I deem it unnecessary to review the evidence. It satisfactorily establishes, in my judgment, that respondents have acquired the rights, if any, of those who claimed to have organized that company. If, therefore, by such organization a corporation de jure was constituted, respondents, who are its officers and stockholders, are plainly entitled to put in operation its corporate powers. If, by such organization, a corporation de facto resulted, no right exists in this court to call in question its organization or enjoin its de facto officers and stockholders from making use of those powers. The real contest in the case, therefore, turus upon the organization of the Metropolitan company. The evidence makes it clear, I think, that when books were opened in 1870 for subscriptions to the stock, two thousand shares were subscribed for. Those who subscribed made no payment whatever upon the stock, and did no other act in furtherance of the purposes of the incorporation, until 1873. The supplement of that year, above referred to, gave authority for the Elizabethtown Gas Light Co. v. Green. election of directors (in case of a previous failure to elect) in the same manner as was presented in the original act. The subscribers to the stock and their representatives, without having paid a dollar on the stock, seem to have elected, in April of that year, directors of the company, who afterward elected a president and other officers. Thereafter the form of an organization seems to have been maintained, though irregularly, but nothing has been done until very recently to carry out the design intended by the legislative grant. It is the language of our cases, and the conceded rule, that if, by such an organization, a corporation de facto came into existence, its organization cannot be impeached on the demand of appellant, but only upon inquisition by the state. Did the organization, which is thus disclosed, constitute a de facto corporation which may exercise the powers granted to the Metropolitan company, free from the examination and restraint of any court, at the instance of one injured by such exercise. I think it obvious that the only circumstance which can be claimed to give appellant a right to be heard in respect to such organization, is the omission of those who subscribed to the stock and claimed to have organized the company to make the payments required by the charter. By its provisions five per cent. of the par value of each share of stock was required to be paid by the subscriber therefor at the time of subscription, and the election of directors was not to be made until after $30,000 had been subscribed and paid in. As before stated, no such payments were made at all. Moreover, the evidence compels the inference that those who attempted this organization purposely evaded making the required payments. They made, instead, a mere pretence of payment, claiming that pretence to give an apparent and the only right to organize. This was not done under any misconstruction. of the act as to the amounts to be paid or the time of payment.. It was a deliberate and calculated evasion of a law, the purport of which was plain, and, as the means adopted to evade it show, perfectly understood. Their conduct in that respect was and must be pronounced to have been a fraud upon the act under |