« PreviousContinue »
the corporation. (Robinson v. Spavlding etc. Co., 72 Cal. 32, 13 Pae. 65.)
The presumption is that a corporation has no stock to sell. (California Sugar Mfg. Co. v. Schafer, 57 Cal. 396.)
EXTENSION OF TIME OF DELINQUENT SALE.
Sec. 345, C. C. The dates fixed in any notice of assessment or notice of delinquent sale, published according to the provisions hereof, may be extended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation; but no order extending the time for the performance of any act specified in any notice is effectual unless notice of such extension or postponement is appended to and published with the notice to which the order relates. En. March 21, 1872.
See sec. 331, C. C., ante.
ASSESSMENTS SHALL NOT BE INVALIDATED.
Sec. 346, C. C. No assessment is invalidated by a failure to make publication of the notices hereinbefore provided for, nor by the nonperformance of any act required in order to enforce the payment of the same; but in case of any substantial error or omission in the course of proceedings for collection, all previous proceedings, except the levying of the assessment, are void, and publication must be begun anew. En. March 21, 1872.
For publication, see sec. 339, C. C., ante.
See sec. 331, C. C., ante.
Burham v. S. F. Fuse Mfg. Co., 76 Cal. 28, 17 Pac. 939; San Bernardino I. Co. v. Merrill, 108 Cal. 495, 41 Pac. 487; Stockton C. H. & A. Works v. Houser, 109 Cal. 8, 41 Pac. 309.
Insufficient Publication.-An assessment is not invalidated by a publication of thirteen days instead of fifteen, as required by section 339, Civil Code. (Burham v. S. F. Fuse Mfg. Co., 76 Cal. 28, 17 Pac. 939.)
ACTION FOR RECOVERY OF STOCK, AND LIMITATION
THEREOF. Sec. 347, C. C. No action must be sustained to recoyer stock sold for delinquent assessments, upon the ground of irregularity in the assessment, irregularity or defect of the notice of sale, cr defect or irregularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, the sum for which the same was sold, together with all subsequent assessments which may have been paid thereon and interest on such sums from the time they were paid; and no such action must be sustained unless the same is commenced by the filing of a complaint and the issuing of a summons thereon within six months after such sale was made. En. March 21, 1872.
See sec. 331, C. C., ante.
Burham v. S. F. Fuse Mfg. Co., 76 Cal. 28, 17 Pac. 939; Herbert Kraft Co. Bank v. Bank of Orland, 133 Cal. 66, 65 Pac. 143.
Limitation of Action to Recover.-Section 347, Civil Code, and subdivision 2 of section 341, Code of Civil Procedure, have no application to an action relating to stock sold under a void assessment, which the corporation had no power to levy or enforce. (Herbert Kraft Co. Bank v. Bank of Orland, 133 Cal. 64, 65 Pac. 143.)
Assessments-Remedies of Stockholders Against Void Assessments. A stockholder wrongfully deprived of his shares under a void assessment may either sue the corporation in trover for the value of his shares, or may mandamus the corporation to allow the registry of his shares, or to pay damages if registry is impossible, or he may sue in equity to vacate the sale, and to have the shares sold ordered to be delivered up and canceled. A court of equity has
jurisdiction to give full relief to the stockholder in such (Herbert Kraft Co. Bank v. Bank of Orland, 133 Cal. 64, 65 Pac. 143.)
AFFIDAVITS OF PUBLICATION-AFFIDAVITS OF SALE-TO
BE FILED. Sec. 348, C. C. The publication of notice required by this article may be proved by the affidavit of the printer, foreman, or principal clerk of the newspaper in which the same was published; and the affidavit of the secretary or auctioneer is prima. facie evidence of the time and place of sale, of the quantity and particular description of the stock sold, and to whom, and for what price, and of the fact of the purchase money being paid. The affidavits must be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Certificates, signed by the secretary, and under the seal of the corporation, are prima facie evidence of the contents thereof. En. March 21, 1872. Amd. 1873-74, 207.
See sec. 331, C. C., ante.
The original section contains the words “primary evidence,'' in. stead of the words “prima facie evidence,” as above.
Where notice of sale of delinquent assessments is insufficiently published, the directors have no authority to waive the right to sell the stock and to elect to collect the delinquent assessment by personal action. (San Bernardino etc. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487. To same effect: Hibernia etc. Soc. v. Lewis, 111 Cal. 522, 44 Pac. 175.)
WAIVER OF SALE-ACTION TO RECOVER ASSESSMENT.
Sec. 349, C. C. On the day specified for declaring the stock delinquent, or at any time subsequent thereto and before the sale of the delinquent stock, the board of directors may elect to waive further proceedings under this chapter for the collection of delinquent assessments, or any part or portion thereof, and may elect to proceed by action to recover the amount of the assessment and the costs and expenses already incurred, or any part or portion thereof. En. March 21, 1872.
San Joaquin L. & W. Co. v. Beecher, 101 Cal. 76, 77, 35 Pac. 349; San Bernardino etc. Co. v. Merrill, 108 Cal. 493, 495, 41 Pac. 487; Stockton C. H. & A. Works v. Houser, 109 Cal. 5, 41 Pac. 809; Visalia etc. R. R. Co. v. Hyde, 110 Cal. 635, 52 Am. St. Rep. 136, 43 Pac. 10; Shively v. Eureka etc. Mining Co., 129 Cal. 296, 61 Pac. 239.
Recovery of Assessments.—The Civil Code provides two methods of enforcing assessments, one by sale of stock and the other by an action of law, at the option of the board of directors. The latter method is equally valid and in many cases more efficacious. (San Joaquin L. & W. Co. v. Beecher, 101 Cal. 71, 35 Pac. 349.)
Article I. General Powers, $$ 354-364.
II. Records, $8 377, 378.
$ 354. Powers of corporations. $ 355. Limitation of powers. $ 356. Banking expressly prohibited. $ 357. Misnomer does not invalidate instrument. § 358. Corporation to organize within one year. $ 359. Increasing and diminishing capital stock, how. § 360. Corporations may acquire real property, and how much. § 361. Consolidation of mining corporations owning adjoining
361a. Transfer of franchise not valid without consent of stock.
holders. § 362. Amendment of articles or certificate of incorporation. § 363. Corporations may own their lots and buildings. § 363. Correction of erroneous filing of articles of incorporation. § 364. Corporations may transfer foreign concessions.
POWERS OF CORPORATIONS.
Sec. 354, C. C. Every corporation, as such, has power:
1. Of succession by its corporate name, for the period limIted; and when no period is limited, generally;
2. To sue and be sued in any court;
3. To make and use a common seal, and alter the same at pleasure;
4. To purchase, hold, and convey such real and personal es. tate as the purposes of the corporation may require, not exceed. ing the amount limited in this part;
5. To appoint such subordinate officers or agents as the business of the corporation may require, and to allow them suitable compensation;
6. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock;
7. To admit stockholders or members, and to sell their stock or shares for the payment of assessments or installments;
8. To enter into any obligations or contracts essential to the transaction of its ordinary affairs, or for the purposes of the corporation. En. March 21, 1872.
The code, in defining a corporation, says it has "certain powers and duties of a natural person”: Sec. 283, C. C. Section 354, Civil Code, proceeds to enumerate these powers, and section 355 limits its powers to those enumerated and to those necessarily incidental.
Succession for period limited: See code limit of fifty years, sec. 290, C. C. Limit for homestead corporations ten years: Sec. 557, C. C.
Where action against corporation may be brought: See Const. Cal. 1879, art. XII, sec. 16; see Code Civ. Proc., sec. 395.
Acquiring property by eminent domain: See Code Civ, Proc., sec. 1237 et seq.
Power to make by-laws: See ante, sec. 301, C. C.