Fairchild v. Masonic Hall Ass'n

Napton, J.

i. corporation: sion. The decision of the court of appeals in this case is based on the point, that the charter of the company, although containing the words •“ perpetual succession, was limited by the general statute which confined the duration of all corporations, where there was no limit in the charter, to twenty years, *530 and as the suit against this corporation was brought after the expiration of the twenty years, the judgment against the corporation was a nullity, and, of course, execution against the stockholder could not issue upon a void judgment against the corporation.

That the wórd “perpetual” is frequently used in the sense of “ continuous or uninterrupted” is well established by our lexicographers, and the practice of eminent writers and speakers. That another meaning, of indefinite duration, is also legitimate is equally clear, and the one or the other may be adopted, according to the context and the subject matter relative to which the word is used. The words “ perpetual succession ” are here used in the charter of a private corporation, and would naturally mean, if unrestricted by other terms, an indefinite duration.

That various charters were granted by the legislature with the words “perpetual succession,” which were also restricted to a term of years designated in the same charter, can hardly lead to any conclusion as to such charters as contained the words “perpetual succession” without any such limitation.. The additional limitation to a specified term would undoubtedly fix the duration of the corporation, notwithstanding the use of the words “perpetual succession,” and require these words to be understood in the sense of continuous or uninterrupted succession, a meaning confessedly appropriate when the context or subject matter requires it. But such a construction does not lead to the conclusion that, in charters containing the words “ perpetual succession” with no limitation upon the duration of the corporation, the legislature used these terms as equivalent to continuous or uninterrupted succession.

Erom 1845, when this provision in regard to charters which contained no limitation was first adopted, down to 1865, the session acts every year will be found to be crowded with charters of private incorporations, for schools, collcgi s, bridges, roads, library associations, literary and scientific associations, benevolent and religious associations, *531 &c. It is unsafe to base any conclusion upon the variety of terms used in these acts, some of which'use the terms perpetual succession and others continuous succession. A vast number of these charters repeal the right of the legislature, a right already reserved in the general law on the subject of corporations, to make'any alterations or repeal. If legislative construction of prior acts is entitled to any weight, it would seem that their action in regard to such charters as had merely the words perpetual succession, without any qualification, was entitled to consideration, as indicating that they did not use the words perpetual succession and continuous succession in the same sense. Take for instance the charter of the Hannibal & St. Joseph Railroad Company, passed in 1817, which has nothing more in it than the words perpetual succession. The legislature in 1851 directed the issue of bonds to the amount of $1,500,000, none of which could fall due before 1871, long after the expiration of the charter, supposing it to have had only a duration of twenty years. We have been referred to a great number of charters, where subsequent enactments imply an indefinite duration from the use of the words perpetual succession. In fact, this is the case in relation to charters of schools, colleges and library associations, without number. We decline, therefore, to base any construction of the words “perpetual succession” upon a supposed construction given of them by the legislature, inasmuch as their enactments have been somewhat conflicting and variant, and we therefore prefer adopting the natural and ordinary acceptation of the terms.

2iift¡rmtY-acobn-a[Hoo°rpÍmeiio]rf isS! o£ Io45 aud In 1861 Mrs. Hunt became a stockholder. Her liabilities were fixed by the law then in force, and could not be affected or changed by any subsequent enact™ents, either of the convention of 1865 or the legislature which passed laws in accordance with the provisions of the constitution then adopted. The question then is, what law was in force in 1864 which imposed on her a double liability ? By the thirteenth sec *532 tion of the act of 1845 a double liability was imposed on all stockholders of corporations created after the passage of that act. In 1855 that act was revised, and the twentieth section of the act concerning laws declares that, “ all acts or parts of acts of a public, permanent and general nature, revised at the present session of the general assembly, so soon as such acts take effect, shall be construed as repealing the acts in force at the commencement of the present session of the general assemblj, so revised.” The thirteenth section of the act concerning corporations so revised in 1855 says : “In all corporations hereafter created by the legislature, unless otherwise specified in their charter,” &c., a double liability is imposed. This section is a mere copy in hcec verba of the thirteenth section of the act of 1845. If the thirteenth section of the act of 1845 was repealed, as it undoubtedly was, by the twentieth section of the revision of 1855, the only law in force when Mrs. Hunt subscribed was the thirteenth section of the act of 1855, which declared a double liability upon the stockholders of all corporations hereafter created. Now this corporation was created in 1853, before the passage of the act of 1855, and unless we can construe the word “ hereafter ” as meaning heretofore, or as meaning both hereafter and heretofore, there was no double liability imposed on the stockholders in the Masonic Hall Association in 1864. Moreover the eighth section of this act of 1855 (Revised Code'of 1855, p. 1,024) provides that “wherever the term heretofore occurs in any statute, it shall be construed to mean any time previous to the day when such statute shall take effect, and wherever the term hereafter occurs, it shall be construed to mean the time after the statute containing such term shall take effect.” That this literal copy of the thirteenth section of the act of 1845 was a blunder on the part of the legislature may be conceded, but what authority is there on the part of the courts to correct it and insert the word “heretofore” instead of hereafter?

In The City of St. Louis v. Alexander, 23 Mo. 507 , this *533 court remarks: “ The effect of the revision of the charter on the 3rd day of March, 1851, was not to make former-provisions which had previously existed, and which were continued, to begin irom that date, but for convenience sake to embody all the acts in force at the time of the revision, to take date from the period they were first passed. It would be of the most mischievous consequences to hold that the revision of a law had the effect of making the revised law entirely original, to be construed as though none of its provisions had effect but from the date of the revised law. When a former provision is included in are-vised law, it is only thereby intended to continue its existence, not to make it operate as an original act to take effect from the date of the revised law. The revision has not the effect of breaking the continuity of these provisions, which were in force before it was made.” In that case the repealing clause in the act of 1853 was that “ all acts and parts of acts contrary to and inconsistent with the provisions of this act or within the purview thereof,” are hereby repealed; and we entirely concur in the views above expressed in that case.

Rut in the revision of 1855 it is declared that all acts or parts of acts revised at the present session of the general assembly, so soon as the revised laws take effect, shalL he construed as repealing the acts in force at the commencement of the present general assembly, (whether consistent or inconsistent, contrary to or within the purview thereof). In short, but one meaning can be given to this law, and that is that the new law was a substitute for the old one, and the former law was expressly repealed. In the revision of 1865 this provision was materially changed. Section five says: “ The provisions of the general statutes, so far as they are the same as those of existing laws, shall be construed as a continuation of such laws, and not as new enactments.” There was no such provision in the revision of 1855, but an express repeal of the act of 1845, which was revised and a new law passed copying most of *534 the provisions of the former act. Section thirteen, which created the double liability in 1845, was repealed, and a new section adopted, copying literally from the old one, but unless we can conjecture that it was intended to apply to previous charters, and substitute the word heretofore for hereafter, this clause in the act of 1853 did not apply to the charter of the Masonic Ilall Association. It is not our province to form any conjecture concerning the intention of the legislature, except from what they have said, and they have confined the liabilities expressly to charters created after the passage of the act of 1855. So that in 1864 there was no double liability upon Mrs. Hunt as a stockholder.

3 _. doul:)le cmist!V'ution of i8ti3 That neither the constitution of 1865 nor the act of the legislature passed under it could retroact so as to affect Mrs. Hunt’s liability in 1864, is beyond question. State, &c. v. Sullivan Co. Ct., 51 Mo. 522 . The judgment of the court of appeals is affirmed.