Chollar Mining Co. v. Wilson

Thornton, J. Application for writ of prohibition. The court is of opinion that this proceeding is well brought by the corporation. As representing the stockholders, it is a party beneficially interested.

The petition addressed to the judge contains the allegation that the signers thereof (nine in number), constituted “ a majority of the shareholders ” of the corporation—the Chollar Mining Company.

[376]I am of opinion that the allegation of the petition in this regard is insufficient. It should state the number of the shareholders, so that the court below can see on the face of the petition that the signers do in fact constitute the majority of such shareholders.

In the petition to this court, it is averred that there were, when the petition to the court below was made and verified by its nine signers, and are now, more than sixty of such shareholders. This averment is not denied, and it is urged on behalf of the application made to this court, that under such circumstances the court below had no authority to proceed, inasmuch as it was not signed by a majority of shareholders.

I am further of opinion that this contention must be sustained. The act of 1872, under which this proceeding is taken, requires that the petition must be signed by a majority of the shareholders. (See § 1, act of 1872, Stats. 1871-2, p. 443.) The authority to the Superior Court to proceed is wholly statutory. It is a special proceeding provided by statute, not according to the course of the common law; and to invest such court with jurisdiction, the requisites of the act must be complied with, and it must so appear on the face of the record. If not so complied with, the court has no jurisdiction to proceed. This is so clearly the law, that it is unnecesssary to cite authority to sustain it. But we will refer to Pulaski County v. Stuart, 28 Gratt. 872.

The argument of the respondent as to the construction of the act of 1872 has been fully weighed, but I can see no good reason for holding that the words “ majority of shareholders ” mean the same thing as “ the holders of the majority of the stock.” The difference between the expression “majority of the shareholders ” and “ the holders of the majority of the stock,” was clearly understood by the legislature which enacted the act of 1872. Both are used in the act. If both were the same in meaning, why alter the form of the words used ?