Slaughter v. Moore

82 A. 963, 9 Del. Ch. 350, 1912 Del. Ch. LEXIS 21

• Court: Court of Chancery of Delaware
• Decided: April 10, 1912
• Status: Published

Opinion

The Chancellor :

This case is before the Court on demurrers to the bill. The bill was filed June 8th, 1910, by the receiver of the Delaware General Electric Railway Company against four persons individually, one of these persons being, as alleged, the then State Treasurer, and the other three being his predecessors in office, and the object of the bill is to enforce re-payment of moneys paid to the State Treasurer pursuant to the general corporation Act. By the Act corporations may be created to build railways by filing articles of association, and one of the requirements is that the capital stock of the company shall be not less than $2,000 per mile of the proposed railway. Before the articles can be filed certain requirements must be complied with, being those in section 108 of the present Act (22 Del. Laws, c. 166), which is identical with section 105 of the Act in force at the time the deposit in question was made (21 Del. Laws, c. 273). The section is as follows:

“Sec. 108. Articles of association, in compliance with the provisions of sections 105 and 107 of this Act as amended shall not be filed and recorded in the office of the Secretary of State until at least five hundred dollars of stock for every mile of railway proposed to be made is subscribed thereto and paid, in good faith and in cash, to the directors named in said articles of association, nor until the directors shall have deposited the said moneys so subscribed and paid to them with the State Treasurer, who is constituted the custodian of the same, and shall hold the same, subject to be re-paid to the directors of the said corporation, or to the treasurer thereof, in sums of five hundred dollars for each mile of said railway, only upon the construction of which it shall be proved, to his satisfaction, that the said corporation has expended at least the sum of five hundred dollars, nor until there is endorsed on such articles of association, or annexed thereto, an affidavit, made by at least three of the directors named in said articles of association, that the amount of stock required by this section has been in good faith, subscribed and paid in cash as aforesaid, and that it is intended, in good faith, to construct or maintain and operate the railway mentioned in such articles of association, which affidavit shall be recorded with the articles of association as aforesaid.”

By the bill it appears that in 1899 the Delaware General Electric Railway Company was incorporated under the general corporation Act of March 10th, 1899, to build an electric railway between Milford and Smyrna, and pursuant to the above section deposited with Lewis Heisler Ball, one of the defendants, the then State Treasurer, $17,500, being $500 per mile of railway contemplated. Subscriptions to stock amounting to $500 per mile were received by the company and they were paid in cash and in good faith. There is no allegation in the bill that the affidavit required by the above quoted section was made and filed, the affidavit being, among other things, that it was intended in good faith to construct, .or maintain and operate the railway. Some work was done towards construction, but the cost of such work does not appear, and so it is not alleged that at least $500 had been expended on any one mile of the railway. In 1902 an attempt was made to have further work done by another corporation, the Delaware Electric Traction Com-pony, and as part of the arrangement the interest of the depositing company in the deposit of $17,500 was, on April 3rd, 1902, assigned to John B. Wharton, trustee. On the same day, April 3rd, 1902, a certificate of dissolution of the Delaware General Electric Railway Company was filed. On April 17th, 1902, the Delaware Electric Traction Company was incorporated to build over the right of way acquired by the first named company, but in fact it did nothing substantial in the matter. In 1907 a suit was brought, presumably by a stockholder of the Delaware General Electric Railway Company, against that company and Wharton, trustee, and in 1909, in that suit, Stephen Slaughter was made receiver of the Delaware General Electric Railway Company, and Wharton, trustee, was ordered by the decree of the Court to assign to Slaughter, receiver, the present complainant, the interest in the above deposit of $17,500, which was done.

Ball, State Treasurer, in 1899, was succeeded in office by Burris, Burris by Rawlins, and Rawlins by Moore, the present State Treasurer (1912). The bill alleged that Ball, State Treasurer, received the deposit as custodian and, therefore, as trustee, and that it was his duty to pay it over to his successor and so on, and that the succeeding Treasurers were also custodians or trustees. The failure of the defendants to pay over the deposit to the representative of the Delaware General Electric Railway Company is alleged. To the bill each of the defendants has demurred generally and the case was argued upon the demurrers.

Thus it appears affirmatively that the moneys were deposited with Ball, State Treasurer, as custod'an; that the deposit was paid as a prerequisite to the obtaining of the franchise to build the railway mentioned; that the railway was not built as a whole, nor any one mile of it, to the extent required by the act; that the original depositor is now, and since 1902, at least, has been permanently and entirely disabled and incapable of doing any work in the construction of the railway or expending any money for the work, for, of course, the receiver of the dissolved corporation cannot and would not be allowed to do so.

Three questions arise and should probably be considered in this order: (1) Has the Court of Chancery jurisdiction of the cause, or has the complainant a full, adequate and complete remedy in a court of law, either by mandamus or an action of assumpsit? (2) Is the suit really against the State of Delaware, though nominally against four individuals who on the bill are described as the present State Treasurer and his three predecessors in that office? (3) Is the complainant entitled to the money?

The complainant urges that the use of the word “custodian ’ ’ constituted the State Treasurer a trustee for the depositor, and that this gave jurisdiction to the Court of Chancery, and that the complainant had not a legal remedy. Also that the duty to re-pay the moneys deposited was a ministerial duty imposed on the State Treasurer, and, therefore, the suit was not against the State. Neither of these interesting questions need be considered, because the complainant has shown no legal or equitable right to have re-paid to him the money which he seeks. There is no satisfactory authority in point to guide the Court on the main question on the merits. The case of Willson v. Swain, (1897), 60 N. J. Law, 115, 36 Atl. 778, relied upon by the complainant, does not help him. There a railroad company, under a statute apparently similar in language to the Delaware Statute, had paid to the State Treasurer the required sum per mile, and had completed enough of the road to entitle it to have all the balance of the deposit. The receiver of the company applied for it, and the Treasurer refused to pay it to him because an assignee of the depositing company also claimed it. It was, therefore, a contest between two claimants. The Court held that a writ of mandamus would lie against the Treasurer in favor of the receiver, saying:

“When such expenditure has been satisfactorily proved to him [the Treasurer], he has nothing to do except to refund the money to the company as directed by the Act. The duty imposed upon him in this regard is purely ministerial in character, and upon his failure to perform it relief by mandamus will be granted.”

This tends to show that the right of the complainant, if any, is at law by n^andamus, and certainly does not show that one who has not complied and cannot comply with the prescribed terms under which the deposit may be re-paid, may still enforce re-payment thereof. The case of Crawford County, etc., Co. v. Meadville, 228 Pa. St. 606, 77 Atl. 928 (1910), relied on by the complainant, is not in point. There a street railway company, as a condition to the granting to it of a right to use certain streets, paid to the city a sum to cover the estimated cost of paving displaced, “in case the track of the company shall be laid in any street which had heretofore been paved.” After the time for using the streets expired the company asked re-payment of the deposit, and the Court held it should be repaid, because it was “a mere deposit with the city, to become the money of the city only on condition and when the company entered upon the paved streets.” Such a decision was clearly right, but does not throw any light on the question under consideration here.

On the other hand, the case of Tate v. Salmon, 79 Ky. 540, cited by the defendants as a clear precedent against the right of the complainant, does not seem convincing. There a Virginia insurance company made a deposit with the State Treasurer of Kentucky for the benefit of policy holders, as required by law. Later the company became insolvent and a receiver for it was appointed in Virginia. Policy holders brought suit in Kentucky against the State Treasurer to compel him to deliver the deposit to the receiver. The Court said that the suit could not be brought, because no law had been passed for the disposal of the fund, or providing for such a suit. The Court seemed to regard this as a suit against the State, but it is not satisfactory in its reasoning or result.

To determine the complainant’s right to re-payment of the deposits, consideration must, therefore, be given to the Act under which the railway corporation was created, and which became a part of its fundamental law. The deposit required by section 108 is not for the protection of stockholders of the railway company. In this respect, the law and its purpose is different from that relating to deposits with the Insurance Commissioner, which are distinctly stated to be for the benefit and protection of policy holders. It may be that the deposit was required because it tends to insure a completion of the railway. The complainant urged that it was not intended to be security that the road would be completed, because manifestly the sum deposited per mile was a very small proportion of the cost of the railway per mile. But while the completion of the railway is not secured by the deposit, it has a useful purpose in promoting efforts to complete it; for the deposit is to be re-paid mile by mile, and the last portion of the deposit is not re-paid until the minimum amount fixed by the Act has been expended on the last mile.

The deposit may or may not have been required as an evidence of the good faith of the promoters of the enterprise. It is urged by the complainant that such was its purpose, while the defendants contend that it was not, because the affidavit required by section 108 was the evidence of good faith. It is probably true that in part the legislative purpose in requiring the deposit was to discourage irresponsible or undesirable persons from using the Act to occupy desirable routes for railways without proper financial support or honest purpose, and so deprive other responsible and desirable investors from building a railway over the same route. The provisions may have been intended to discourage trafficking in franchises, or the use of the franchises so obtained in some improper manner. All of this may have been in the minds of the legislators, and the deposit of $500 per mile tended to prevent this misuse of the powers to be obtained under the Act. If so, then these legislative purposes will be promoted by requiring strictly a performance of the express condition for re-payment of the deposits and denying re-payment of deposits to every depositor who fails to allege the compliance with the condition for such re-payment fixed by the Act under which the deposit was made.

But whether or not these were the legislative purposes and reasons for the provision, it is manifest that the money in question was deposited to be re-paid only upon the performance of a condition, which has not been and cannot now be performed. A sum was deposited and the condition of the re-payment thereof to the depositor was that a certain thing would be done, which has not been done and cannot now be done' by the depositor, or any one for it. There is no need for a declaration of forfeiture for non-performance of the conditions, for that is distinctly and necessarily implied from the existence of the condition and its non-performance. It is of no consequence to the complainant that the State cannot use for its own benefit the money deposited, if such be true, for the complainant must show his right to the money, and not simply deny the right of the holder of the deposit to use it for its own purposes.

It was urged by the complainant - that the absence from section 117 of the Act of a penalty of forfeiture of the deposits shows that there is no such forfeiture. That section requires that the railway be completed within two years, and concludes thus:

“Provided that if any such company or corporation organized under this Act shall fail to comply with the provisions of this section, it shall thereby forfeit the franchises given it by this Act.”

The argument is made that a forfeiture of franchises is the only penalty for failure to build the railway, for there is no mention therein of a forfeiture of the money deposits required by section 108. But this is not convincing. Failure to comply with the condition established by section 108 to obtain re-payment is as effective to bar the depositor from a right of re-payment as would an express declaration in section 117 of forfeiture of the deposit. Therefore, the absence from section 117 of an express forfeiture of the money deposited does not relieve the depositor of the consequence of his failure and present inability to perform a necessary condition of re-payment of the deposit.

One alleged defense is untenable. The defendants urged that inasmuch as the present receiver was appointed more than three years after the dissolution of the company, it was an invalid appointment (see sections 39-44 of the present general corporation Act). But this question has been definitely and finally settled in this State by the Supreme Court in the case of Harned v. Beacon Hill Real Estate Company, post, p. 411, 84 Atl. 229, decided at the January Term, 1912, affirming a decree of the Chancellor, wherein it was held that section 43 was broad enough to permit the Court to appoint a receiver after three years from dissolution, and at any time, when there is property or assets of the dissolved company to be administered by a receiver. Harned v. Beacon Hill Real Estate Co., ante p. 232, 80 Atl. 805, affirmed by the Supreme Court on appeal, post p. 411.

Attention has been called to an Act approved April 7th, 1909, after the incorporation of the railway company in question, (chapter 51, p. 104, vol. 25, Laws of Delaware). By that Act the State Treasurer was directed to keep separate from other funds and accounts “all moneys received from railroads and railways as guarantee deposits”, which moneys were thereafter to be designated as the “Railroad and Railway Guarantee Deposit Fund.” ' “Any moneys remaining in this fund after the time elapses for the companies making deposits to regain their deposits, as provided in the general incorporation laws of the State”, should be invested by a commissioner, and the income be paid into the sinking fund. It is urged for the defendants that this Act operates as a legislative construction of section 108 of the general incorporation Act and that the effect of it is to show that there may be a time when the railway corporations making deposits under section 108 lose their right to regain them; and if such a corporation ever loses its right to regain ■ such deposits, it does so by suffering a voluntary dissolution of its corporate existence whereby it permanently disables itself from performing the condition precedent. If this later Act be a legislative construction of section 108, it probably has no judicial force except for the future. Robertson v. Baxter, 57 Mich. 127, 23 N. W. 711. But in view of the construction and effect here given to section 108 "it is not important to pass on either of the above contentions, or do more than refer to them.

In New Jersey there is a statute similar to that under consideration here, with a provision said to be like that of section 108. After the general incorporation Act was enacted here, another Act was passed there making it a duty of the State Treasurer to re-pay moneys deposited under similar circumstances. This Act recited in the preamble, that the moneys so deposited by railroad corporations could not be used for any purpose by reason of the expiration of the .time limited for construction of the railroads, and recited also that “there is no reason why such moneys should be retained by the State.” It is urgently contended by the complainant that this supplementary Act was a legislative construction of the prior general Act, and that, as both were passed prior to the general incorporation Act of Delaware, then in adopting in substance the general incorporation Act of N ew J erse;r, the legislative interpretation tb ereof, and especially of section 108, was also adopted by the General Assembly of Delaware. But that is not a reasonable conclusion. The enactment by the Legislature of New Jersey of the later Act above referred to, may as well indicate a change of legislative purpose as an interpretation of the original one. The original legislative purposes in New Jersey in requiring the deposits may have been quite different from those in Delaware, and therefore in adopting the general Act from New Jersey the Delaware Legislature did not necessarily adopt the so called legislative construction of that general Act. There may have been reasons which the Legislature in Delaware had in mind why the deposits should be retained by the State in a case such as this and not returned to the depositors, or their representatives. Further, it may well be urged against the complainant that in New Jersey it was considered necessary for the Legislature to authorize re-payment of the moneys deposited before it could be done. It is true that if one state adopts a statute theretofore enacted in another state, it adopts also the judicial construction put thereon by the courts of the latter State. Wilmington City Ry. Co. v. Peoples Ry. Co. (Del. Chi), 47 Atl. 245, 251. But manifestly this principle does not apply to the case under consideration.

The conclusions here reached are supported by the declaration of Judge Bradford in a very recent opinion in a case in the District Court of the United States for this District. Jones v. Moore, State Treasurer, 198 Fed. 301, 305, rendered March 16th, 1912. There Jones, the receiver of a dissolved railway company, brought an action of assumpsit against the State Treasurer in office at the time the suit was brought, and sought thereby to recover a deposit of money made with a prior State Treasurer under the same section and under like circumstances. A demurrer to certain counts of the declaration was sustained, because the counts did not disclose either a contract, or a consideration which could support a contract, as between the defendant and the corporation for which the plaintiff was the receiver. On the general question as to the right to recover the deposits like that which the complainant here is seeking to reach, Judge Bradford said:

“Wholly aside from the foregoing considerations this Court strongly inclines to the opinion that the plaintiff on the facts set forth in the first three counts, is not entitled to recover the moneys deposited by the suburban and interurban companies with the State Treasurer under any form of remedy, legal or'equitable, and that whatever hardship may exist calls for legislative and not judicial relief. But in view of the conclusion reached as to the legal impropriety of this action it is not necessary to consider other difficulties confronting the plaintiff.”

Being clear, then, that the complainant has not shown himself entitled to have re-paid to him the moneys in question, the demurrers are allowed and sustained on this ground.

Let an order be entered accordingly.