Opinion
June Term, 1822.
1. The act of incorporation of the Yadkin Navigation Company makes the subscription of a certain sum, and not the payment of it, essential to the incorporation of the subscribers.
2. The charter of the company is not contrary to that clause of the Declaration of Rights which condemns perpetuities.
3. A law passed subsequently to the act of incorporation, without the assent of the subscribers, by which the place for the sale of shares forfeited is changed, cannot be deemed an invasion of the rights granted by the original charter.
THE defendant became a subscriber for stock in the Yadkin Navigation Company on 1 June, 1818, to the amount of five shares, at the price of $100 for each share. In 1819, 1820, and 1821, the president and directors demanded of the defendant the sum of $30 on each share by him subscribed for, and on his refusal to pay advertised (11) the shares for sale, pursuant to the provisions of an act of the Legislature. The shares, when exposed to sale, were bid off for the sum of $10 each, and for the difference between the sum for which they sold and that which the defendant by his subscription undertook to pay this action was brought. The declaration set forth the acts of Assembly relative to the company and the proceedings which had taken place under them, as stated above.
The defendant pleaded, first: That there was no such corporation as the Yadkin Navigation Company, because that, notwithstanding books were opened for subscription, pursuant to the act of 1817, and more than $50,000 were subscribed, yet at the first general meeting of subscribers they proceeded to elect a president and directors, and to appoint a treasurer, and did not pay to the treasurer the sum of $10 each, as by law required. And second: That the sales made of his shares at Salisbury was not authorized by the act, and that the act of 1820, authorizing the company to make sales at Salisbury instead of Halifax, was an alteration of the terms upon which he subscribed, made without his consent and against his will, and was unconstitutional and void.
To these pleas the plaintiff demurred, and the court sustained the demurrer, overruled the defendant's pleas, and gave judgment accordingly, from which the defendant appealed.
The demurrer to this plea presents several questions to the consideration of the Court. The first is, whether the company was legally incorporated, inasmuch as the subscribers did not at the first general meeting after the return of the commissioner's books (12) pay the sum of $10 each, as required.
The circumstances which are to precede the incorporation of the company are distinctly pointed out by the first section of the act of 1816. The only condition is that when it appears to the commissioners that $100,000 have been subscribed, then the subscribers, from the time of the first meeting, are declared to be incorporated; they are then to perform several corporate acts, such as electing a president, directors, and a treasurer.
By the fourth section of the act of 1812, for improving the navigation of the Roanoke, several clauses of which are adopted as the basis of the Yadkin charter, each subscriber is directed to pay to the treasurer of the company, on the first general meeting, $10 on each share; so that the incorporation and the appointment of officers are antecedent to the payment of the $10; for how can that sum be paid to the treasurer of the company if it has no existence? It would be to put a vain and absurd construction upon a law which is susceptible of a plain and sensible one.
Further, the section last referred to positively requires the payment of the money — "shall pay"; but the consequence of not paying, the penalty attached to delinquents, is left discretionary with the company as to the time of its infliction; the names of those who fail to pay "may be struck off the books" is the language employed to denote this discretion. What books? The answer is, the books of the corporation; but if they were not incorporated they would have no such power.
It seems evident that the Legislature fixed upon the subscription of a certain sum, and not the payment of it, as essential to the incorporation of the subscribers, who were completely clothed with the attributes of a corporate body before the time when the payment was to be made. As such, they were fully competent to judge how far the situation and exigencies of the company might call upon them for the vigorous and literal exercise of their right to demand money, and the (13) supposition is inadmissible that they were not equally capable of estimating the responsibility of the subscribers.
The constitutional objections appear to me to be equally untenable. Exclusive emoluments and privileges may be granted in consideration of public services. The nature of such services, whether great or small, certain or contingent, is not a subject of judicial inquiry; it properly belongs to and may safely be intrusted with legislative wisdom. Nor is this charter forbidden by that clause of the Declaration of Rights which condemns monopolies and perpetuities. It requires no argument to prove that it is not included in the first term, and the other imports property locked up from the uses of the public, and which no person has power to alienate. Whatever emoluments are granted to these subscribers, the grant was made in contemplation of a great national benefit, to be derived from the union of their funds and intelligence, and under a certainty that without such incitement individual enterprise could not be raised into action, and the main services of the public property would continue as nature formed them. But others are not excluded from a participation in the profits, for, as the stockholders may transfer their shares, so every citizen, at his discretion, may invest his money in this property.
If changing the place where the shares are to be sold from Halifax to Salisbury is seriously insisted on as an invasion of chartered rights, it must be acknowledged that no one can be injured by it, and that its operation is altogether beneficial to the subscribers, the majority of whom, it may be supposed, live on the waters of the Yadkin. To require the president and directors to go to Halifax to conduct the sales, and the persons whose shares are sold to get the surplus, would have been an inconvenience to all concerned. It is merely the (14) correction of an error which crept into the first law, from inadvertently adopting the whole of the fourth section of the Roanoke act, which, fitly enough for that navigation, made Halifax the place of sale. It would ill become the gravity of a court of justice to pronounce this formal alteration, which could have no possible object in view but the benefit of the company, to be an infringement of their rights. For these reasons I am of opinion that the demurrer be sustained and the judgment be affirmed.
HALL and HENDERSON, JJ., concurred.
NOTE. — Questions similar to those involved in this case arose in a case which was also before the Court at this term, Navigation Company v. Craig. The opinion of the Court, was reported above, applies with equal propriety to both cases.
PER CURIAM. Affirmed.