In re Lady Bryan Min. Co.

U.S. Circuit Court for the District of Nevada

In re Lady Bryan Min. Co.

14 F. Cas. 926, 1 Sawy. 349, 2 Abb. 527, 4 Nat. Bank. Reg. 394, 1870 U.S. App. LEXIS 1620

CourtU.S. Circuit Court for the District of Nevada

DecidedSeptember 26, 1870

StatusPublished

This text of 14 F. Cas. 926 (In re Lady Bryan Min. Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Lady Bryan Min. Co., 14 F. Cas. 926, 1 Sawy. 349, 2 Abb. 527, 4 Nat. Bank. Reg. 394, 1870 U.S. App. LEXIS 1620 (circtdnv 1870).

Pincite

Opinion

SAWYER, Circuit Judge.

I am satisfied that tiie action of the district court, in vacating the order of the register in bankruptcy, is correct. The petition in bankruptcy was filed without proper authority, and the register acquired no jurisdiction, The petition, under the thirty-seventh section, must be “duly authorized by a vote of the majority of the corporators at any legal meeting called for the purpose.”

No other petition on behalf of the corporation, can be recognized under the act. A “corporator,” as understood both in the law respecting corporations, and in -common speech, is “one who is a member of a corporation.” [Bouv. Law Diet, and Webst. Diet.]² That is to say, one of the constituents, or stockholders, of the corporation. I do not know that the word has ever been used in any other sense.

We do not know what motive induced the limitation to corporators, but. probably, it was supposed, that, in a matter of so great importance, the constituent members of the corporation ought to be consulted. Whatever the motive, this is the provision of the act. and we are not authorized by a strained or fanciful construction to make it something else. It is the province of courts to interpret, and not to make, statutes.

The management of the ordinary business of corporations in the state of Nevada, by the provisions of the statutes of the state, has been committed to a board of trustees, but it does not follow that the trustees may authorize the filing of a petition in bankruptcy under the act of congress. Congress has power to pass a general bankrupt act. and to prescribe the conditions upon which the benefits of the act may be attained, and the mode of procedure for their attainment; and when prescribed, those conditions must [928]*928be complied with. It is no interference with the state laws respecting corporations to require the consent of the corporators in person, rather than of the board of trustees, as a condition precedent to the filing of a petition in bankruptcy; and this condition has been imposed by the bankrupt act. For this purpose the action of the board of trustees cannot be regarded as the action of the cor-porators. The corporators themselves must act in a meeting “called for that purpose.”

I am, also, of opinion, that the act of the register being void for want of jurisdiction at the time the order was made, a subsequent ratification by the stockholders could not render it valid. It is not a matter of agency, so far as the authority of the register is concerned, but of jurisdiction. The petition itself shows the authority upon which it was filed, to be a resolution passed by the board of trastees, and, consequently, the want of due authority, and of jurisdiction, appears upon the face of the record.

The petition must be denied, and the order of the district judge affirmed. Ordered accordingly.

[The corporation having subsequently gone into involuntary bankruptcy, an order of the court was issued restraining any person from interfering with the property of the company. A motion by the sheriff of Storey county and by Johnson, plaintiff in an execution against the said company, to set aside that order, was denied. Case No 7,0S0.]

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SAWYER, Circuit Judge.

I am satisfied that tiie action of the district court, in vacating the order of the register in bankruptcy, is correct. The petition in bankruptcy was filed without proper authority, and the register acquired no jurisdiction, The petition, under the thirty-seventh section, must be “duly authorized by a vote of the majority of the corporators at any legal meeting called for the purpose.”

No other petition on behalf of the corporation, can be recognized under the act. A “corporator,” as understood both in the law respecting corporations, and in -common speech, is “one who is a member of a corporation.” [Bouv. Law Diet, and Webst. Diet.]² That is to say, one of the constituents, or stockholders, of the corporation. I do not know that the word has ever been used in any other sense.

We do not know what motive induced the limitation to corporators, but. probably, it was supposed, that, in a matter of so great importance, the constituent members of the corporation ought to be consulted. Whatever the motive, this is the provision of the act. and we are not authorized by a strained or fanciful construction to make it something else. It is the province of courts to interpret, and not to make, statutes.

The management of the ordinary business of corporations in the state of Nevada, by the provisions of the statutes of the state, has been committed to a board of trustees, but it does not follow that the trustees may authorize the filing of a petition in bankruptcy under the act of congress. Congress has power to pass a general bankrupt act. and to prescribe the conditions upon which the benefits of the act may be attained, and the mode of procedure for their attainment; and when prescribed, those conditions must [928]*928be complied with. It is no interference with the state laws respecting corporations to require the consent of the corporators in person, rather than of the board of trustees, as a condition precedent to the filing of a petition in bankruptcy; and this condition has been imposed by the bankrupt act. For this purpose the action of the board of trustees cannot be regarded as the action of the cor-porators. The corporators themselves must act in a meeting “called for that purpose.”

I am, also, of opinion, that the act of the register being void for want of jurisdiction at the time the order was made, a subsequent ratification by the stockholders could not render it valid. It is not a matter of agency, so far as the authority of the register is concerned, but of jurisdiction. The petition itself shows the authority upon which it was filed, to be a resolution passed by the board of trastees, and, consequently, the want of due authority, and of jurisdiction, appears upon the face of the record.

The petition must be denied, and the order of the district judge affirmed. Ordered accordingly.

[The corporation having subsequently gone into involuntary bankruptcy, an order of the court was issued restraining any person from interfering with the property of the company. A motion by the sheriff of Storey county and by Johnson, plaintiff in an execution against the said company, to set aside that order, was denied. Case No 7,0S0.]

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Bluebook (online)

14 F. Cas. 926, 1 Sawy. 349, 2 Abb. 527, 4 Nat. Bank. Reg. 394, 1870 U.S. App. LEXIS 1620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lady-bryan-min-co-circtdnv-1870.