Pacific Bank v. De Ro

By the Court, Sanderson, J. : Three questions have been discussed in argument:

First—Does the plaintiff exist as a corporation under the name of “Pacific Bank?”

Second—Is the defendant in a position to question the corporate existence of the plaintiff?

Third—Do the Bevenue Laws of the United States require a waiver of “ presentation and demand, notice of non-payment and protest for value received,” written upon the back of a promissory note by an indorser, to be stamped ?

The first question involves the power of the Legislature to change the name of a corporation by special statute, it being claimed that the power is denied by the thirty-first section of the Fourth Article of the Constitution, which provides that “ corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes.” The mere changing of the name of a corporation is not, as it appears to us, the creation of a corporation in the sense of the Constitution. As suggested by counsel for the plaintiff*, it would seem that the changing of the name of a corporation is no more the creation of a corporation than the changing of the name of a natural person is the begetting of a natural person. The Act, in both cases, would seem to [541]be what the language which we use to designate it imports —a change of name, and not a change of being. But it is unnecessary to decide this point for any purpose of the present case, for under the rule in Dannebroge Mining Company v. Allment, 26 Cal. 286, and Rondell v. Fay, 32 Cal. 354, the defendant ivas not in a position to make it. There is no pretense but that the plaintiff is “ claiming in good faith to be a corporation under the laws of this State, and doing business as such corporation” under the name of “Pacific Bank.” Such being the case, neither “its due incorporation” nor “its right to exercise corporate powers” can “be inquired into collaterally in any private suit to which it is a party.” Such inquiry must be had at the suit of the State, for so the statute expressly provides. (Stats. 1862, p. 110, Sec. 6.) Under the operation of this statute it is only necessary for a corporation, in order to establish, if controverted, its capacity to sue, to prove that it is a corporation de facto claiming in good faith to be a corporation, and to do business as such under the laws of this State. It is said, however, upon the part of the defendant, that this statute was not intended to affect corporations to be created after its passage, but only such as were then in existence; and hence, that it cannot be invoked by the plaintiff, which has been created since its passage. We see no grounds for such a construction. The statute is an amendment to a general statute concerning corporations passed in 1850, and necessarily affects all corporations which are formed, or intended to be formed, under the laws of this State. There is nothing in its language indicating an intent to confine its operation to existing corporations, nor is there anything in the reason upon which it is founded suggestive of such a limitation. We find nothing which indicates that it was intended as a curative statute merely— to heal existing infirmities only. Had such been the sole object, the Legislature would not have passed it as an amendment to a general law, which was an existing and continuing law upon the general subject of corporations, and the mere fact that it was so passed is conclusive that it was designed,