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OF THE COMPANY, AS CONSTITUTED UNDER THE ACT.
Part I. Of the Legality of a Railway Company.
Of the Legality of a Railway Company.
71. No question can in general be raised about the legality of a railway company, inasmuch as it derives its existence from the act of the legislature. But, supposing the act constituting a company to be obtained by fraud or misrepresentation practised on the legislature, the company, which is the mere creature of the act, cannot, it is conceived, be taken to have any legal authority or even existence, at least as against those who are not parties to the fraud or misrepresentation. (a) But the legality of a railway company cannot, as we have already had occasion to notice, be impugned, on the ground that a great proportion of the subscriptions, on the faith of which the act is suffered to pass, are made in trust for the company, and upon a secret understanding that the parties making them are not to be liable to the responsibilities imposed by such act on the shareholders in general. (b)
(a) See Cromford Railway Company v. Lacey, 3 Y. & Jer. 80. (b) See ante, p. 38 et seq.
Of the Constitution of a Railway Company.
Sect. 1.-Of the Constitution of the Company viewed generally. 2. Of the Company viewed in its External Relations. 3. Of the Company viewed in its Internal Relations. 4. Of the Capital Stock of the Company.
SECT. 1.-General View of Constitution of Company.
72. Looking at the general features of acts of this kind, in respect of which they will, upon examination, be found to bear a very close resemblance to each other, (and further than this, our review cannot, for very obvious reasons, be carried,) a railway company may be defined to be a collection of many individuals united into a body corporate for the making and maintaining of a railway with all necessary works, &c., and for the better prosecution of this design, endowed by the policy of the law, not merely with a modified capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations, of suing and being sued, of enjoying privileges and immunities according to the scope of its institution, or the powers conferred upon it, either at the time of its creation, or at any subsequent period of its existence, (c) but likewise with extraordinary powers, more peculiarly characteristic of such an undertaking, viz. powers of taking and dealing with land, houses, &c., of internal selfgovernment, and of raising, by the mutual subscrip
(c) See Kydd, Intro. 13.
tion of its individual members, a certain amount of capital, divided into a given number of transferable shares. As a corporate body, a railway company enjoys all the ordinary incidents of such a body, (subject, of course, to such express provisions on the subject as are contained in their act of incorporation, and to the limitations thereby engrafted on the general law of corporations); viz. 1st, to have perpetual succession; 2nd, to sue or be sued, grant or receive &c., by its corporate name; 3rd, to purchase lands, and hold them for the benefit of itself and its successors; 4th, to have a common seal, for a corporation being an invisible body, cannot manifest its intentions by any personal act or oral discourse, it therefore acts and speaks only by its common seal; 5th, to make bye laws or private statutes for the better government of the corporation, which are binding on itself, unless contrary to the laws of the land, and then they are void. (d)
In order however to develope fully the force of the above definition, let us proceed to consider its main branches somewhat more in detail. For this purpose, a railway company may be regarded in three principal points of view; in regard, 1st, of its external relations; 2ndly, of its internal relations; 3rdly, of its capital stock.
(d) Bl. Com. vol. i. 475, 476.
SECT. 2.-Of a Railway Company viewed in its
Sub-Sect. 1.-Of the Mode of Action prescribed by its Act to the Company.
2. Of the Powers, Capacities and Incapacities of the
3. Of the Rights of the Company, incidental to such
SUB-SECT. 1.-Of the Mode of Action prescribed to a Railway Company.
1. Of the Organs through which it must act.
Of the Forms to be observed by the Company in acting, viz. in regard of Contracts, &c.
73. First, Of the proper organs through which a railway company may act as such. These in general are threefold: 1st, the general assembly of the company; 2ndly, the board of directors; 3dly, a duly constituted agent, &c.
74. 1st, The resolution of a public assembly of the company, in matters on which it is competent for the assembly to resolve, operates as the act of the company, and is accordingly binding on the entire corporate body.
This, however, supposes that in all substantial respects the resolution pursues the requisitions of the act by which the company is constituted, as, for instance, in respect of time, place, persons, &c. If, therefore, the meeting, at which such resolution
is passed, is improperly convened; or if such meeting consist not of a proper number of proprietors, or of members not properly qualified; or the votes at such meeting are not taken according to the method prescribed by the act; the resolution cannot be taken to operate as the public act of the company in its politic capacity. (a) Primâ facie, however, it must, it seems, be presumed, at any rate as against the company, that the forms required by the act have been complied with, and therefore it lies upon it, where it seeks to avail itself of any default in this respect, to give strict proof thereof. (b) Not only must the resolution itself be duly taken, but likewise where ulterior steps are necessary to give it effect, those steps must either appear to be prescribed by the resolution itself, or be shown to fall within the scope and purview of the authority of the parties to whom it is left to carry out the resolution. (c)
75. 2d. The acts of the directors within the scope of their authority are no less binding on the company than the acts of a general assembly. As a general rule, however, this supposes that a sufficient number of directors to constitute a quorum concur in the act, and that those so concurring are duly elected and qualified. If these requisites are satisfied, the fact of there being vacancies in the directory, which have not been filled up pursuant to the authority
(a) Hill v. The Manchester and Salford Water Works Company, 5 B. & Ad. 874; Clarke v. Imperial Gas Light and Coke Company, 4 B. & Ad. 324.
(b) Clarke v. Imperial Gas Light and Coke Company, ubi supra.
(c) See cases cited in note (a) supra.