FEDERAL REPORTER.
of: Kentucky, have failed, to oomply with the provisions of article, 238 of the 'constitution of the stat& of Louisiana, wbich provides that no foreign corporation shall do any business in this state without having one or more known places of business, and an authorized agent or agents in the state upon whom procesS may be served. Held, that the provision of the constitution of Louisiana referred to, being an attempt on the part of the state to interpose a. restriction on navigation, and therefore in conflict ,with the provisions of the act of congre:::s approved February 18. 1793, passed in. pursuance of a clear authority under the constitution of the United Statel:l, is null and void. Sinnot v. Davtmport, 22 How. 227. E:x:ceptionoverruled, and judgment rendered in favor of plaintiffS in each cause.,
HICKORy:FARM
OIL
Co: fl. BUFFALO,N. Y. &: P. R. August
(GrcuitOouf't.
w: D ·. PcmnB1/Zflania.
1887.)
I.
FORBIGN CoRPORATIONS-RIGHT TO HOLD RBAL ESTATE':"'EFFECT olfDEBD.
,
Under the Pennsylvania act of April 26, 1855, (1 Purd. 861,) which forbid. a foreign c01Poratlon to "acquire and hold" real estate, a deed of conveyance of land to luch a corporatlon'1snot void.' It passes the title, and the corporation may hold the land subject to the commonwealth's right of escheat.
.. SAME-RIGHT Olf OBJECTION.
'J:he c()lUmc;lDwealthalonecan object to the legal capacity ofa corporatiOJl to llold real estate. 1 "
Ejectment. Question of law reserved. Jolvn Dalzell, for plaintiff: . J. D. Hancock, for ,ACHESoN,J. By consent of the parties, & verdict was taken in favor of the p)aintiif/$ubject to the opinion of the court as to the Ill.W, upon the following agreed state oHacta: , "(1) It is .admittedthat the plaintiff has a good record title to the land deaeI'ibed in 'the writ; which is pin't'of a larger tract, containing, in aU about 400 acres, purchased by and conveyed to plaintiff in 1864. ' "(2) That the plaintiff is a corporation, organized under the laws of New York, in the year 1864, under the provisions 'of an act of the legislature of 1Tbe commonwealth alone can take advantage of the want of capacity in a corporationto take and bold la:\ld.. T. Canal Co., (Pa.)I,iAtl. Rep. 751; Railroad Co. v. Lewis, (Iowa,) 4 N. W. Rep. 842. . When B corporation is incompetent by its cbarter'totakea legal:titlll to real estate, a conveyance to it is not void, but only voidable, and tbe sovereign only can object. It is valid until assailed in a direct proceedina for thatpurpO,se., Land Co. v. Bushnell, (Neb.) 8 N. W. Rep. 389.' .. ' . · . . .. , . , Restrictions imposed by the cbarter of a corporation upon the amount of,property that it may,holcicanDot be taken advantage of collaterally by private persons, but only in direct proceedinj:{!! by tbe state. Jones v. Habersham,2 Sup. Ct. Rep. 336. Where a,foreign corporation has the power to acquire real estate, so far as necessary for business,ltse,cquiSltionofrealty cannot be assailed in a collateral proceediug as aD act ultra Will' :811ch: a question can be raised by the state only, and ia a direct lng. Barnes v. Suddard, (Ill.) 7 N. E. Rep. 477.
HICKORY FARM OIL CO; ,
.
v;
:BUFFALO, N. Y. & P. R. CO.
23
the state of New York entitled I An act to authorize the formation of corpo. rations for n1anufacturing, mining, mechanical, and chemical purposes,' passed :February 17, 184B, and the several supplements thereto. "(3) The articles of association of said corporation contain, inter a.lia, the following paragl'aph:'(ll) The objects for said company is formed are to acquire by purchase, lease, or otherwise, and to hold and convE-y lands in the mineral oil producing regions of Pennsylvania, and elsewherE!, and to carryon the business of mining and boring for petroleum or mineral oils, and other mineral products of such lands, and extracting the same from the oo.rth.' "(4) It the court shall be of opinion that, under the law, the plaintiff is entitled, upon the facts as recited, to recover, then judgment to be entered on the verdict for the plaintiff; otherwise judgment to be entered for the defendant 'noh obstante ve1·edicto." By the fifth section of the act of assembly of the commonwealth of Pennsylvania of April 26, 1855, (P. L. 329; 1 Purd. 361,) it is enacted' that "no corporation other than such as shall have been incorporated under the laws of this state, nor shall any foreign government, potentate, or power, hereafter acquire and hold any real estate within this commonwealth, directly in the corporate name, or by or through any trustee or <lther device whatsoever, unless specially authorized to hold such propby the laws of this commonwealth." And by the ninth section of .said act (1 Purd. 719) itis provided that all property hereafter "acquired and held" by corporations forbidden by said act to hold the same, or held contrary to the intent of the act, shall escheat to the commonwealth; ,arid, upon the same beilig adjudged to have escheated under judicial proceedings by quo warranto, it shall be taken into possession, and disof as in cases of property escheated for defect of heirs. The question of law arising upon the agreed state of facts is whether in view of the above recited provisions of the act of April 26.> 1855, by its purchase of the land in controversy, and the convey· .alice to it of the title thereto, acquired the legal estate therein. If the plaintiff bas the legal estate in the land, it can of course recover, for the · uefendant has shown no title whatever, but, as against the plaintiff, is a mere intruder. The leading case in Pennsylvania on the subject of the effect of a conveyance of real estate to a corporation forbidden by law to "purchase .ana hold" the same, is that. of Leazure v. lIillegas, 7 Sergo & R. 313, in which it was held. that· such corporation might purchase and take title to tpe real estate; its title, however, like that of an alien, being defeasible at the pleasure of the commonwealth. That case, and the later case ;6fGowndie v. Water(h;, 7 Pa. St; 233, settle the principle that the commonwealth 'alone can object toa want of capacity in a corporation hold land. In Runyan v. Leasee of C08ter,14 Pet. 122, (a Pennsyl· vania case in its facts singularly like the present case,) the supreme · ·courtof the United States, following the ruling in Leazure v. Hillegas, .sustained the right of a foreign corporation to maintain an action of ejectment for land which it was not licensed to hold under the laws of Pennsylvania, the commonwealth not having exercised its right of escheat.
24
The supreme court of Pennsylvania had occasion to consider thEl act of April 26. 1855, in the case of Slate Co. v. Savings Bank, 8 Wkly. Notes Cas. 430, and therein declared that it was a mortmain act, disabling foreign corporations from acquiring and holding real estate, but the commonwealth only can take advantage of the disability, and that it was not intended that a deed to a foreign corporation should be void so as not to pass the estate of the grantor. Evidently these cases are decisive in favor of the plaintiff's right, upon the agreed facts, to maintain this action. The court, then, being of opinion that under the law t.he plaintiff is entitled, upon the facts agreed on,to recover the land described in the writ of ejectment, it is ordered that judgment be entered on the verdict in favor of the plaintiff.
EASTMAN
v.
CLACKAMAS
Co.
Oourt, D. Oregon. September 5, 1887., By the law of Oregon, a county has charge and supervision of all the public roads therein, and, by means of road-districts. supervisors, and local taxation, is provided with the means to open snd keep them in repair, and is therefore on principle liable at common law for any injury to person or property resulting from its act or oniission in the construction or maintenance of a bridge on such highway,1 2. CONSTITUTIONAL LAW-'''REMEDY BY DUE COURSE OF LAW." Section 10 of article 1 of the constitution of the state declares that "every man shall have remedy by due course of law for injury done him in person, property, or reputation." At and long prior to the formation and adoption of the constitution the statute of Oregon gave any person an action against a county for an injury to his rights arising from some act or omission thereof, which statute was continued in force by section 7 of article 18 thereof. Held, that such remedy for such injury, or its equivalent, was secured to the party by the constitutIOn, and therefore it is not in the power of the legislature to deprive him of it. STATUTORY CONSTRUCTION-REPEAL. HIGHWAYS-BRIDGES,
A statute of Oregon passed in 1854 gave an action against a county for an injury arising from its act or omission, which was continued in force after the adoption of the constitution by section !l ofarticle 18 thereof, and on the adoption of the Code of Civil Procedure, in 1862, the provision was carried .. jnto section 847 thereof; but on February 21, 1887, the leA"islature amended said section so as to. omit such provision, without making any express provision as to any existing right of action thereunder. Held that, in the absence of any express provision to that effect, the act of 1887 ought not to be construed so as to affect or take away any such rights, and did not affect this action then pending in this court for damages for such an injury. 4. HIGHWAYS-NoTICE OF DEFECT. A supervisor 'of roads is the agent of" the county within his district, and notice to him of a defect in a highway therein is notice to the county; aDd what he may know of such defect in the diligent discharge of the duties of his office he,has notice of, and the county also. (Syllabus by tlus Court.) I
8.
See note at end of case.
