in this feature seems to have been to put restrictions upon a mere "watering" of corporate stock, at the same time that it authorized increases commensurate with the growth of business, and the larger capital thereby made necessary. To that end, and for the purpose of having the corporate assets correspondingly enlarged, it was required to be made up in money. This evidently would be in the interests, and for the protection of those dealing with the company. Light is in this view thrown upon the nega tive clause, respecting the allowance or recognition in law of an unpaid increase. This is given all necessary operation, when the failure is held to be ground to avoid the issue, by the state, and an answer to claims based upon it, by holders of such stock. To go further would be to make it a sword in the hands of wrongdoers. This is not required by the terms of the act, and manifestly should not be by its construction. The result then is that the increase, on the state of fact alleged, was not void, but only voidable. Hence it may be the basis of liability to creditors, such as the act imposes, upon the principle of an equitable estoppel. After what is alleged to have been done has stood for more than thirty years, evidence by a public record, and the company during all that time has carried forward its business upon the presumed credit of it, holders of the stock will not be heard to deny their liability consequent thereon, under the statute, as to debts made since the increase, by saying, if such be the facts, that it was fraudulently excessive and never paid up. On this proposition, as applied to this case, the authorities are decisive. Chub v. Upton, 95 U. S., 665; Clark v. Thomas, 34 Ohio St., 46, 62; Gilmor's Ex. v. Bank, supra; Kent v. O. M. Co., 78 N. Y., 159; Voorhees v. Receiver, 19 Ohio 463; Goff v. Flesher, 33 Ohio St., 107; Veeder v. Mudgett, 95 N. Y., 295; Rowland v. F. M. Co., 38 Ohio St., 270; Cook on Stock & Corp. Law, section 288. But there is another view of the matter, which seems to cut off all question at this point. "The correct rule of interpretation is, that, if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any of them, and it is an established rule of law that all acts in pari materia, are to be taken together as if they were one law. * * And if it can be gathered from a subsequent statute in pari maleria, what meaning the legislature attached to the words of a former statute, they would amount to a legislative declaration of its meaning, and will govern the construction of the first statute." U. S. v. Freeman, 3 How., 564. The same court has held, also, that "where a legislature has full power to create corporations, its act recognizing as valid a de facto corporation, whether private or municipal, operates to cure all defects in steps leading up to an organization, and makes a dejure out of a de facto corporation." Comanche Co. v. Lewis, 133 U. S., 198. An act which passed and took effect April 12, 1865, section 5, provides that "the stockholders of any manufacturing, bridge or gas company, increasing its capital stock under this act, or which has heretofore increased the same under the act entitled 'an act to authorize manufacturing companies to increase their capital stock in certain cases,' passed May 1, 1854, shall be individually liable for all the debts of such company to an amount over and above the stock by him or her owned in such company, and any unpaid installments thereon, to a further sum equal in amount to such stock, etc." Swan & S., 237. This section was amended, but not changed on the points here material, in 1872, (69 Ohio L., 25), and in its operation upon the stock and individual liability, is 133 Turnbull v. Pomeroy Salt Co. et al. continued in force by Rev. Stat., sec. 3258. Bishop on Stat. Crimes, section 181. Now, with reference to the effect of this statute, how stands the case? In 1856, as this count shows, every step for the increase of its capital stock, in the sum named, had been taken by the stockholders of this Salt Company down to and including the filing of a certified record of its action in that regard with a public officer, as required by the act of 1854; the stock itself was then also issued, and became the basis, for so much, of the company s credit and business, from that time to the date of the later enactment; but it had not been paid for by the holders. As above shown, the increase was not void because unpaid. Hence it is to be regarded as good de facto, so long as the state saw fit not to set it aside. By its terms, the act of 1865 includes the stockholders of "any manufacturing company" which had "increased" its capital stock "under" the act of 1854. It also covers this exact case by making such stockholders liable for "unpaid installments" on their stock, as well as for the additional amount which it provided, when necessary to pay corporate debts. Further, in referring to increases under the earlier act, for the purposes of the liabilities which the later one creates, it omits the requirement in the first, that they should have been made "agrecably" to its provisions. Expressly, then, and by the clearest recognition of the validity of a de facto increase of capital stock, such as here is in question, for the purposes of liability against stockholders, by it created, the act of 1865 operated to make it a de jure increase. Therefore from that time on, and as to all debts since made by the corporation, at least, it must be so treated. Taking these acts of 1854 and 1865 together, it is a question whether the liability in a case like this is not direct, rather than collateral, as under the general statute. Here it is provided that the stockholders. shall be “individually liable for all the debts of such company to an amount," etc. The other liability is "to the creditors of the corporation to secure the payment of the debts," etc. Rev. Stat., sec. 3258. The chief difference, practical to the case is. that if the liability be direct, the creditor must proceed in equity, which alone can give adequate remedy, and where jurisdiction will be taken to avoid a multiplicity of suits. Harris v. Dorchester, 23 Pick., 112; Pfohl v. Simpson, 74 N. Y., 137; Bank v. Stevenson, 5 Allen, 398; Hornor v. Henning, 93 U. S., 228. But if this view be not well founded, and equity will assume jurisdiction only when want of legal remedy is shown, the averments in the second count, that the Salt Company is wholly insolvent, and has no property whatever subject to execution, from which the plaintiff's claim, or any part thereof can be made, as matter of pleading, on that point, are good against a general demurrer. The evidence of insolvency, and want of legal assets, need not be set out. Bomberger v. Turner, 13 Ohio St., 264: Terry v. Tubman, 92 U. S., 156; Hodges v. Min. Co., 9 Or. 200; and cases on like point, sutra. This disposes of the questions on the demurrers to the second count, so far as discussion is called for, and the result is that they must be overruled. The motions are in several instances frivolous, and in none, well taken. They are therefore all overruled. W. H. Lasley, for plaintiff. E. A. Guthrie, for Welch, defendant. Grosvenor & Vorhes, J. U. Myers, Russell & Webster, for other defendants. Superior Court of Cincinnati. 153 153 SPECIFIC PERFORMANCE. [Superior Court of Cincinnati, 1890.] Ursuline COMMUNITY V. HENRY HUNeke. A good title must be tendered within a reasonable time after sale of real estate in order to entitle plaintiff to specific performance of contract. NOYES, J. This was an action to compel specific performance of contract for the purchase of a parcel of real estate lying on the east side of Sycamore street, north of Liberty, Cincinnati. Said property was conveyed by Anna Gallager, a nun, to the plaintiff, a corporation under the laws of California and located at Santa Rosa, California. Prior to April 16, 1889, Meyers, Gibbs & Co., auctioneers, advertised said premises to be sold at auction on said day, perfect title to be given. On the day of the sale the auctioneer stated that title and immediate possession would be given to the purchaser. With this understanding the defendant bid on the same and it was knocked down to him as the highest bidder, and he signed a memorandum of purchase. It appeared from the evidence that the power of attorney given was not sufficient to authorize the agent at Cincinnati to make a deed, so that a deed had to be prepared and sent to California for execution. About a month after the sale a deed was tendered to defendant which he declined to accept on account of informalities in its execution. Suit was then brought to compel defendant to take under said deed. It further appeared from the evidence of the officers of plaintiff, taken by deposition in California, that the board of directors of said corporation never passed a resolution authorizing the sale of real estate, or the making of a power of attorney, or of the deed tendered to defendant. They thereupon met as a board and passed a resolution ratifying the acts of its officers and agent, and in the meantime, the president having died, and in order to cure any defects relating to the former deed, a new deed was executed and tendered to the defendant on the day of trial, about eleven months after the date of sale. The testimony also showed that defendant, who is a grocer, was occupying his present store under a five years lease which expired in June following the sale, and that it was important to him for several reasons to get immediate possession of plaintiff's lot, so that he could build on the same. Held: That the title offered to defendant under the first deed was not good, and that defendant was not obliged to take it, and that it would be inequitable to compel him to take it under the second deed, tendered so long after the sale, when one of the conditions of the sale was immediate possession; a good title should have been tendered within a reasonable time. Petition dismissed. Stephens & Lincoln, for plaintiff. J. H. Charles Smith and J. R. Sayler, for defendant. 153 Lederer v. State. * INTOXICATING LIQUORS. [Hamilton Common Pleas.] JOHN LEDERER V. STATE OF OHIO. 153 1. The information or indictment under Statute 8092-18 (sec. 11) S. & B. R. S., on the charge of allowing a saloon to remain open on Sunday need not state the purpose or intent for being open. 2 If the place where intoxicating liquors are sold on other days of the week, be accessible (either by iront or rear door), so that one's patrons, or the public, may enter and occupy as a public resort on Sunday, then such place is not closed, and is open in violation of the statute: And if such place be one hall or room, in which the proprietor also keeps a restaurant, cigar-stand, gives musical concert or theatrical performance, and keeps open on Sunday, as a public resort, carrying on any such other business, selling non-intoxicating drinks (and serving them at the tables and in the part of the room where intoxicating liquors were sold and drank on other days of the week), then such place, room or part of a room is open and the law is thereby violated, although the bar, beer pumps and counter be securely enclosed by a wire or other screen, and no intoxicating liquors were sold or exposed for sale on that day. BUCHWALTER, J. The plaintiff in error was prosecuted in the police court, and waiving trial by jury, was found guilty by the trial judge, upon the charge of allowing his saloon to remain open on Sunday; was sentenced to imprisonment in the workhouse for ten days, and to pay a fine of $25.00 and the costs. The information, in substance, charged that he did, June 16, 1889, on the first day of the week, commonly called Sunday, unlawfully and knowingly allow to remain open a certain place (not a regular drug store), where, on other days of the week * ** than Sunday, he therein exposed for sale and sold intoxicating liquors. The bill of exceptions sets out fully the evidence heard, and contains a plan showing the interior arrangement of the "Atlantic Garden," the place wherein the plaintiff in error carried on business. A motion for new trial was filed, overruled, and exception taken. The proof sets out the facts without any material controversy, so as to raise distinctly the legal issues. The place wherein plaintiff in error carried on business is a large hall building enclosed and used as one room. It extends from Vine street to College street, with a public entrance at each street. On the one side is located the cigar counter, the bar counter, beer pumps, and beer waiters' counter and, further to the rear, the orchestra platform. On the other side is located the lunch counter and its attachments. In the rear and central part of the room are located the beer and lunch tables. The proprietor carried on, in these premises, the following various kinds of business: Keeping a saloon, (selling intoxicating liquors, chiefly beer); concert hall entertainment, (for which he had a license from the city comptroller); keeping a restaurant, (for which he likewise had a license); and keeping a cigar-stand. It is manifest these various kinds of business were harmoniously operated together on days other than Sunday. The beer, wine, liquors and cigars being served with the musical and theatrical entertainment, and with lunch and dinner. The regular dinner was served on certain tables usually kept for that purpose. The various drinks are generally served by the waiters, at the various beer tables set about the hall, chiefly in the rear part. The beer was delivered by the bartender, from the beer pumps, to the waiters' counter the waiters giving their checks for the same, delivering it to the patrons at the tables, collecting pay theretor, and settling at the counter. On the Sunday named, in the information the proprietor had the beer pumps Foxed in and locked, and a wire screen enclosed the bar counter, being on top of the counter, in front, to the height of four feet, and extending at the ends, four feet to the floor, thus having a uniform height of eight feet from the floor. The bar was visible through the wire screen, but the doors at each end were locked. *This judgment was affirmed by the circuit court; 3 Circ. Dec., 302. No intoxicating liquors (as beer, wine, or whiskey) were sold, or exposed for sale, on that Sunday; but lunch, regular dinner, lemonade and mineral water were served in the room or place, at these tables. In obedience to the proprietor's orders the doors were opened at a quarter before noon, and they remained open during the day, about twenty persons being present at the time when the officers passed through; the front door was partly open, and the place accessible, at both ends, to patrons and the public. Two legal issues are raised on this record, viz.: Counsel for plaintiff in error claims: I. Insufficiency of the information, because it does not set out the intent or purpose of keeping open. 2. That, on the facts in proof, there was no violation of law:-for that the proprietor closed the part of the place or room where such liquors were, on other days, sold or exposed for sale. The information was drawn strictly in the words of that part of the statute which pertains to the offense of "allowing to remain open." He is charged with knowingly doing that which the statute says he shall not do. In offenses of this character it is sufficient to follow the language of the statute, in the information. Kern v. The State of Ohio, 7 Ohio St., 411; Miller & Gibson v. The State of Ohio, 475; Oshe v. The State, 37 Ohio St., 494. The indictments in the cases cited were for keeping a place where intoxicating liquors are sold contrary to law as provided in sec. 6942 of Rev. Stat. If a man put himself in a state of intoxication, he is guilty of offense against the law; and the information, or indictment, which alleges his state of intoxication is sufficient without also averring the intent or purpose for becoming so. It was held, in Fant v. The People. 45 Ill., 259, that in prosecutions of this character, "the indictment need only charge that the accused 'kept open a tippling house on the Sabbath day or night,' and that it was surplusage to aver the purpose" of doing so. In Lynch v. People, 16 Mich., 472, the complaint simply charged the defendant with keeping open, in the language of the ordinance, and did not aver the purpose of keeping open. A conviction was sustained, the opinion being delivered by Judge Cooly. See, also, Moliter v. State of Ohio, ante 10 Dec. Re. 324, where the common pleas court of Cuyahoga county held the intent or purpose to sell alleged in the information surplusage. The pleader in criminal causes must bear in mind the distinction between misdemeanors of this character and those crimes or felonies involving deceit, fraud, false pretense, dishonesty, or malice, wherein the state of mind with which an act is done is an essential element of the crime. Observing this distinction, the rule herein stated is not at variance with that announced by Judge Ranney, Dillingham v. The State, 5 Ohio St., 280, 283, in the body of his opinion, wherein he says. "That in accusations for this offense (false pretense) is not sufficient to simply follow the language of the statute. * * That the particular pretense or pretenses by which the money is obtained must be specifically stated." A much more serious question is involved in what was the legislative meaning of the words "shall be closed," "allowed to be open, or remain open." And this brings us to the consideration of the second question in this case: Whether the plaintiff in error "closed." or "allowed to remain open on Sunday the place where such liquors were usually sold or exposed for sale?" Section 11 of the amended act passed April 14. 1888, No. 8092-18, Smith & Benedict, Revised Statutes, provides: "That the sale of intoxicating liquors, whether distilled, malt, or vinous, on the first day of the week, commonly called Sunday, except by a regular druggist on the written prescription of a regular practicing physician for medical purposes only, is hereby declared to be unlawtul, and all places where such intoxicating liquors are on other days sold or exposed for sale, except regular drug stores, shall on that day be closed, and whoever makes any such sale or allows any such place to be open or remain open on that day, shall be fined in any sum not exceeding one hundred dollars, and not less than twenty-five dollars and be imprisoned in the county jail or city prison not less than ten days and not exceeding thirty days." And, by way of defining the legislative meaning of the word "place," it says, "In regular hotels and eating houses, the word 'place' herein used shall be held to mean the room or part of room where such liquors are usually sold or exposed for sale, and the keeping of such room or part of room securely closed shall be held, as to such hotels and eating houses, as a closing of the place within the meaning of this act.'" |
