Mokelumne Hill Canal & Mining Co. v. Woodbury

Cope, J. delivered the opinion of the Court—Baldwin, J. and Field, C. J. concurring.

It is alleged in the complaint that the plaintiff is a corporation^ and this allegation being denied in the answer, the case was tried in the Court below upon that issue alone. The plaintiff dates its-corporate existence as far back as 1852, and claims to have been.' duly and regularly incorporated under the general Act of 1850-, [426]providing for the formation of corporations for manufacturing, mining, mechanical, and chemical, purposes. Section 122 of that Act provides that any three or more persons, who may desire to form a company for either of these purposes, “may make, sign, and acknowledge, before some officer competent to take the acknowledgment of deeds, and file in the office of the Clerk of the county in which the business of the company shall be carried on, and a duplicate thereof in the office of the Secretary of State, a certificate in writing,” etc. Section 123 provides, that “ when the certificate shall be filed as aforesaid,” the persons executing the same and their successors, shall he a body politic and corporate. Section 130 provides, that “ the copy of any certificate of incorporation filed in pursuance of this Act, certified by the County Clerk or his Deputy to be a true copy, and of the whole of such certificate, shall be received in all Courts and places as presumptive legal evidence of the facts therein stated. On the trial of the case, it was shown that a certificate, in conformity with the requirements of the Act, had been filed in the office of the Clerk of the proper county, and a certified copy thereof was produced and read in evidence, but it was not shown that a duplicate had been filed in the office of the Secretary of State. It appeared in proof that the company had been doing business as a corporation since 1852, but the Court held, that as it was not shown that a duplicate had been filed as required by the Act, the evidence did not establish the fact of incorporation.

The general rule is, that the existence of a corporation may be proved by producing its charter, and showing acts of user under it; but this rule has no application to a corporation formed under the provisions of a general statute, requiring certain acts to be performed before the corporation can be considered in esse, or its transactions possess any validity. The existence of a corporation thus formed, must he proved by showing at least a substantial compliance with the requirements of the statute. But there is a broad and obvious distinction between such acts as are declared to be necessary steps in the jwocess of incorporation, and such as are required of the individuals seeking to become incorporated, but which are not made prerequisites to the assumption of corporate powers. In respect to the former, any material omission will be fatal to the existence of the corpora