People v. Lowden

BELCHER, C. C. This is an action in the nature of quo warranto, brought in the name of the people by the attorney general, on the information of one Pordyce Bates, to obtain a judgment that the defendants were usurping, intruding into, and unlawfully holding a certain franchise to collect tolls under a pretended wagon-road corporation. The defendants demurred to the complaint, on the ground that Pordyce Bates was one of the original organizers and owners of the wagon-road company, and was estopped from making the complaint and from denying the legitimate existence of the corporation he helped to make. The demurrer was overruled, and the defendants then answered. When the case came on for trial the plaintiff moved the court for judgment on the [539]pleadings, and the motion was granted. The appeal is from the judgment so entered.

The complaint set forth at length the steps taken to form the supposed corporation, and the various requirements necessary to be observed in forming such corporations under the statutes which authorized their formation, and then alleged that there was a failure to comply with the requirements of such statutes:

“That all the proceedings hereinbefore set out and referred to touching the formation, organization, and establishment of said pretended corporation were wholly fictitious and in bad faith; that nine persons did not sign said declaration of intention to organize such pretended corporation, but that a majority of the names signed thereto were signed by the persons referred to in allegation number two herein, without the knowledge or consent of such persons whose names were so signed. Said declaration of intention was never published in any newspaper at all, nor was it ever posted at all. No survey of a route was ever made by Nelson Hosmer, or anybody else, for or on behalf of said pretended corporation. No capital stock whatever was ever subscribed by anybody at all to said pretended corporation; nor was any money at all ever paid into said pretended corporation by anybody at all; nor was any number or valuation of shares of capital stock ever fixed'by said pretended corporation; nor was any preliminary organization of said pretended corporation ever made or had; nor was any certificate ever filed as required by said acts; nor was any copy of the original declaration of intention, or a certificate of the election of officers and of the corporate name, filed in the county recorder’s office of said county.”

The complaint further alleged: ‘ ‘ That if said pretended corporation ever did have any legal or proper standing, it became and was fully and wholly dissolved in the year 1873, upon the expiration of ten years; that defendants have, for a year last past, been using and exercising all the privileges and rights and the franchise of a corporation duly formed, organized, and established under the provisions of said acts of the legislature, and duly extended in its duration under section 401 of the Civil Code of this state, under and by virtue of said