Oroville & Va. R.R. v. Supervisors of Plumas Cty.

By the Court, Rhodes, J. : The petitioner moves that the answer be stricken out, on the ground that it is irrelevant and immaterial, and does not show a legal answer to the writ; and he also moves that the several paragraphs of the answer be stricken out as irrelevant and immaterial.

The first paragraph denies that the Oroville and Virginia City Railroad Company now is or ever was a corporation organized or existing under the laws of the State of California, or otherwise. The third paragraph avers that the petitioner is not entitled to the benefit of a bona fide corporation, for that the persons claiming to compose the same do not claim in good faith to be a corporation, and have not in good faith attempted to comply with the provisions of the law providing for the incorporation of railroad companies, and are not actually doing business as a railroad corporation. The [360]fourth paragraph alleges, both generally and particularly, the failure on the part of the persons who claim to compose the corporation to comply with the law in organizing the corporation.

It is contended on the part of the petitioner 'that the proviso to the sixth section of the general Incorporation Act, as amended in 1862, (Stats. 1862, p. 110,) renders these allegations immaterial. The proviso is as follows : “Provided, that the question of the due incorporation of any company claiming in good faith to be -a corporation under the laws of this State, and doing .business as such corporation, or of its rights to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such de facto corporation may be a party, hut such inquiry may be had at the suit of the State or [on] information of the Attorney General.” This provision does not go to the extent of precluding a private person from denying the existence de jure or defacto of an alleged corporation. It cannot be true that the mere allegation that a party is a corporation puts the question, whether it is such a corporation, beyond the reach of inquiry in a suit with a private person. It must be a corporation either de jure or de facto, or it has no legal capacity to sue or he sued, nor any capacity of any kind. It is an indispensable allegation in an action brought by a corporation, that the plaintiff is a corporation; and it results from the logic of pleading that the opposite party may deny the allegation. Were this not so, any number of different bodies of men, each body styling itself the Directors of a given railroad company, might bring separate actions against the county, and it is impossible to see why each would not succeed in the action, upon showing that it was the duty of the Board of Supervisors to subscribe to the capital stock of the given corporation and issue the county bonds. It is not contemplated that the allegation that the company was duly organized should put the fact beyond dispute and dispense with all evidence. The statute furnishes a rule of evidence. It is declared that the due incorporation ■ of any company