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ion of a former Attorney-General, that it is an implied requirement of the statute that the certificate of incorporation shall separate the authorized capital into common and preferred, fixing the amounts of each.

V. Names and post office addresses of incorporators.-There must be at least three incorporators, who must be natural persons. It is not necessary that any of them should be a resident of New Jersey. (Central R. R. of N. J. v. Penn. R. R. Co., 31 N. J. Eq., 475.)

This section formerly required the residence of each incorporator to be given. This was changed to post office address in the section as amended, and, therefore, this section is subject to the operation of Chapter 173 of the Laws of 1898 (Section 43a, post), which provides that the post office address of the principal office of the company may be given as the post office address of the stockholder in any certificate filed. By this means incorporators residing in other States are not required to make public their addresses for the benefit of the tax authorities of those States.

This subdivision also requires that the aggregate of the subscriptions of the incorporators shall be the amount of capital stock with which the company will commence business, which is required to be stated under the preceding subdivision.

VI. Duration. Formerly the maximum period of duration was fifty years, but by the Revision of 1896 this limitation was stricken out and the existence, if not limited in the certificate of incorporation, is perpetual. The statute formerly required the certificate of incorporation to state "the date on which the existence of the corporation shall begin." Section 10 now provides that the corporate existence begins on filing the certificate in the office of the Secretary of State. The fixing of any other date would be inconsistent with Section 10, and, therefore, of no effect.

VII. Additional powers.-This is one of the most important provitions of the Corporation Act, and tests the skill of counsel in drawing charters and in effectively laying the foundation of the corporate structure. It will be noted that under this section provisions "creating, defining, limiting and regulating the powers of the corporation," &c., may be inserted. The words "creating" and "defining" are new, and carry to its logical result the principle laid down in Ellerman v. Chicago Junc. Rys., &c., Co., 49 N. J. Eq., 217, that the certificate of incorporation is equivalent to a special act of the Legislature.

This practically puts it in the power of the incorporators to decide for themselves the powers which the corporation shall have in addition to the powers expressly given by the act and is in effect a delegation to them of the lawmaking power of the Legislature. .

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This provision may also be construed as meaning that whereas incorporators are enabled to create and define the powers which the corporation shall possess, in addition to those given by Section 1, that the certificate of incorporation shall then become the measure of the company's powers, and that powers not expressly or impliedly given by it are excluded.

Various limitations and regulations of the powers of the corporation, the stockholders and the directors may be made; power may be given to the directors to make and alter by-laws (Sec. 11); directors may be classified (Sec. 12); power exclusively to choose a class of directors may be, conferred on any class of stockholders (Sec. 12); the amount of interest required to be represented at any meeting, and at the annual election of directors to constitute a quorum may be prescribed, provided it is not more than a majority of shares (Sec. 17); power to the directors to sell or mortgage any or all of the corporate property without the assent of the stockholders or with the assent of a majority or two-thirds of the stockholders; restrictions on the power of stockholders to examine the corporate books of account; voting qualifications may be provided-for example, that each stockholder shall have a certain number of shares of stock to entitle him to one vote (Sec. 17). Other similar limitations and regulations might be made.

Under Section 17 as amended in 1901 a provision may be inserted in the certificate of incorporation that any action which now requires the consent of the holders of two-thirds of the stock at any meeting after notice to them given, or requires their consent in writing to be filed, may be taken upon the consent of and the consent given and filed by the holders of two-thirds of the stock of each class represented at such meeting in person or by proxy. (See note to Section 17.)

The simple statement in affirmative language of the matters required by the Corporation Act to be contained in the certificate of incorporation of a company does not amount to such a limitation upon the future action of its stockholders as will prevent a change in the purposes of the corporation by the consent of two-thirds in interest of the stockholders under the same act. (Meredith v. N. J. Zinc & Iron Co., 59 N. J. Eq., 257; 60 N. J. Eq., 445.)

Cumulative voting.-Under Chapter 172 of the Laws of 1900 provision may be made in the certificate of incorporation for cumulative voting. (Sec. 35a, post.)

9. Authentication and record of certificate. Copy evidence.

The certificate of incorporation shall be proved or acknowledged as required for deeds of real estate, and recorded in a book

to be kept for that purpose in the office of the clerk of the county § 9 where the principal office of such corporation in this state shall be established, and, after being so recorded, shall be filed in the office of the secretary of state; said certificate, or a copy thereof, duly certified by the secretary of state, shall be evidence in all courts and places.

P. L. 1846, p. 65; P. L. 1849, p. 301; Act of 1875, § 12.

Within the State of New Jersey the acknowledgment may be taken by the Chancellor, a Justice of the Supreme Court, any attorney at law admitted to practice by the Supreme Court, a Master in Chancery, a Judge of any Court of Common Pleas, a Commissioner of Deeds, a clerk of the Court of Common Pleas of any county, a Deputy County Clerk, a Surrogate or Deputy Surrogate of any county, or a Register of Deeds of any county. ("An Act respecting conveyances [Revision of 1898],” § 22, P. L. 1898, pp. 670, 678, as amended by Chap. 138, Laws of 1901.)

All acknowledgments must be in the form prescribed by the New Jersey statute.

A New Jersey Notary Public has no authority to take an acknowledgment.

Acknowledgments out of New Jersey should, if practicable, be taken by a Master in Chancery of New Jersey or by a Foreign Commissioner of Deeds for New Jersey authorized to act in the place where the acknowledgment is taken. If a Master in Chancery or Commissioner is not available, the acknowledgment may be taken by a Notary Public or other officer, but in such case it is necessary to attach to the certificate of acknowledgment a certificate of the County Clerk or other officer performing similar duties, substantially as follows ("An Act respecting conveyances [Revision of 1898]," § 23):

State of
County of

I,

of the

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Court for the said County, the same being a Court of Record, do hereby certify, That whose name is subscribed to the Certificate of the proof or acknowledgment of the annexed instrument, and thereon written, was, at the time of taking such proof and acknowledgment, a Notary Public in and for said County, duly commissioned and sworn, and authorized by the laws of said State to take the acknowledgments and proofs of deeds or conveyances for lands, tenements or hereditaments in said State of And further, that

I am well acquainted with the handwriting of such Notary Public, and

§ 10 verily believe that the signature to said certificate of proof or acknowledg

ment is genuine.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of the said Court and County, the day of

[L. S.]

Clerk. See further as to taking acknowledgments out of the State, P. L. 1898 pp. 678-9.

The omission of an immaterial part of the acknowledgment by an incorporator, as a failure to state that the contents of the certificate were made known to him and the omission of a certificate of notaryship to state that the notary was authorized by the laws of his State to take acknowledgments and proof of deeds, do not render the incorporators liable as partners. (Stout v. Zulick, 48 N. J. Law, 599. See also Keyes v. Smith, 51 Atl. Rep., 122.)

10. Corporate existence begins on filing certificate.

Upon making the certificate of incorporation and causing the same to be recorded and filed as aforesaid, the persons so associating, their successors and assigns, shall from the date of such filing be and constitute a body corporate by the name set forth in said certificate, subject to dissolution as in this act elsewhere provided.

P. L. 1846, p. 65; P. L. 1849, p. 301; Act of 1875, § 13.

This section is a substitution for Section 13 of the Act of 1875, which provided that the incorporators might insert the time when the company would begin business. Reference is made to the case of Vanneman v. Young (52 N. J. Law, 403), because that case is often cited as authority for the proposition that a corporation may begin business before the recording and filing of its certificate in the office of the Secretary of State. Section 10, in the Revision, repealing Section 13 of the Law of 1875, did away with the effect of Vanneman v. Young in that particular.

In Stevens v. Borough of Merchantville (62 N. J. Law, 167) it was held that an ordinance by which a municipality makes a grant to a private corporation is void if such corporation was non-existent at the time the ordinance was introduced and passed upon second reading. (See also Lake v. Ocean City, 62 N. J. Law, 160, 162.)

De facto corporations. The law on this subject is stated in the case of Stout v. Zulick (48 N. J. Law, 599, 601) as follows: "In the absence of a statutory provision making sharesholders liable in case of failure to comply with the requirements of the charter, or with requirements of the

act under which the company is incorporated, persons who have contracted § 11 with a de facto corporation, as a corporation, cannot deny its corporate existence in order to charge its shareholders individually as partners. * * * Where it is shown that there is a charter or a law under which a corporation with the powers assumed might lawfully be incorporated, and there is a colorable compliance with the requirements of the charter or law and a user of the rights claimed under the charter or law, the existence of a corporation is established.

* *

"And it is entirely settled that the corporate existence of such corporation de facto cannot be inquired into collaterally. It is as to all who contract with it, to be assumed to be a corporation de jure. The legality of its corporate existence may be inquired into by the state, but not by any one else. And this is as true where the corporation is formed under a general law as it is where the corporate existence is claimed under a special charter. * Had this suit been brought against the company it could not have denied its corporate existence, neither can the plaintiffs, who contracted with it as a corporation, do so. (See also Hackensack Water Co. v. De Kay, 36 N. J. Eq., 548; Rafferty, Rec'r, v. Bank of Jersey City, 33 N. J. Law, 368; Vanneman v. Young, 52 N. J. Law, 403; Stockton v. American Tobacco Co., 55 N. J. Eq., 352; In re Trenton St. Ry. Co., 47 Atl. Rep., 819.)

A court of equity is not the proper tribunal to inquire into the validity of such organization. The action must be brought in a court of law, on quo warranto, or information in the nature of quo warranto, by the Attorney-General in behalf of the state. (See cases cited, p. 19, ante.)

11. By-laws.

The power to make and alter by-laws shall be in the stockholders, but any corporation may, in the certificate of incorporation, confer that power upon the directors; by-laws made by the directors under power so conferred may be altered or repealed by the stockholders.

New. Act of 1875, § 45.

Can the stockholders exercise the power conferred by this section at an annual meeting in the absence of notice? This question does not seem to have been decided. It is therefore advisable in most cases to provide in the by-laws expressly as to this.

The powers of the corporation cannot be enlarged by a by-law. (Stewart v. Odd Fellows' Mutual Life Ins. Co., 12 N. J. L. J., 110.)

Construction.-A provision in the by-laws of a corporation that at special meetings of the stockholders questions should be determined by the vote of a "majority of stockholders" was construed to mean a majority

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