King & Hogan v. Harbor Board

MANNING, J. The body created by act number 451, :approved February 16, 1867, and denominated a “Board for the improvement of the River, Harbor and Bay of Mobile,” is a quasi corporation for the performance of duties of a public nature. It is not a private corporation.—Jackson v. Hartwell, 8 Johns. 330; Overseers of Poor of Pittstown v. Same of Pittsburgh, 18 id. 407; Todd v. Birdsall, 1 Cowen, 260, and note; Jansen, Supervisor v. Ostrander, id. 670; Inh. Rumford v. Wood, 13 Mass. 192; Mobile County Commissioners v. State, ex rel. Harbor Board, 45 Ala. 399; Vankirk v. Clark, 16 Serg. & R. 286; Levy Court v. Coroner, 2 Wall. 501; 1 Kyd on Corporations, 29-32. The persons composing this board are not liable out of their individual property, for the price of work done or materials furnished for the benefit of the public, under a contract lawfully made by the board in performance of the duties for which it was constituted, merely because they made the contract. If an action on it be maintainable, it should be brought, as in this instance it was, against the board as a corporation.—Flower v. Allen, 5 Cowen, 670; Lyon v. Adams et al. 4 Serg. & R. 443; Overseers of W. W. v. Overseers of S. W. 3 Serg. & R. 117; Levy Court v. Coroner, supra. Sections 2568 and 2569 of the Revised Code, authorizing ■a corporation to be sued by service of a summons on the “ president, or other head thereof, secretary, cashier, or other managing agent,” or — upon affidavit that they are unknown, or reside out of the State — upon “ any white person in the employ of or doing business for such corporation,” were adopted with reference more particularly to organized private corporations aggregate, though not limited to them. The service of a summons on the president, or other head of a corporation, was good, prior to these enactments, (Ang. & A. oh Corp. § 637), and they were designed to render proceedings against such a body less difficult, by making service on a person not its president or head officer, as sufficient as if he were, and so were designed to be remedial in /their character. [138] Now, the statute creating the Harbor Board does not-provide for the organization of it with a president or any other head officer. It consists of only four members; one-appointed by the governor, and the others by virtue of their ■ holding certain offices. And the service of a summons upon all of these, would certainly have been good in the absence of any evidence of an organization, and service upon a majority of them, would seem to be at least equivalent to a service on an inferior officer of an organized corporation; though whether it is or not, we need not now decide. It is argued that the members of this board being public officers, we must judicially know who they are, and must know that one of the persons mentioned as such in the complaint, and upon whom the summons was served, was not a member of the board when this suit was brought. But it does not follow, if this be admitted, that we know also that the complaint will not be amended if necessary, in this respect, and that an alias summons will not be served on the right person. Plaintiffs had the right to cause these things to be done; and it was not for a stranger to the suit,, as amicus curiae, to come in at this stage of the proceedings, and have the cause stricken from the docket, for the reason that one of the persons who composed the board had not been served with the summons, The motion, if proper at all, should have been to set aside the service; which, it granted, would not necessarily have put an end to the suit. Whether the plaintiffs have or not a right of action on the facts of the case, against this Harbor Board, it would not be proper to determine upon the appeal from an order granting the motion referred to. The president and commissioners of revenue of Mobile county were required, on demand of the Harbor Board, to issue to it bonds of the county to a large amount; and the board was “ authorized to receive such bonds and apply them, or the proceeds of them, to the improvement, cleaning out, deepening and widening of the river, harbor and bay of Mobile, or any part thereof,” &c. If the plaintiffs have not shown by the allegations in their complaint that they have a right of action, under these provisions of the statute, against the board, perhaps the complaint may, before or after demurrer, be so amended as to show that they have. Proceedings upon a writ of mandamus would not, at least before the passage of the act of February 26, 1876, (number 94), have afforded the means of deciding whether anything under the evidence is due to plaintiffs — and if there be, how [139] much is due, where these questions involved the matters in dispute. And if the solution of them could not be obtained in tbe proceeding by mandamus, we are not prepared to say, upon a motion to strike the cause from the docket, that an. action at law would not lie against the board for the determination of such questions.—Levy Court v. Coroner, supra. Nor do we think it proper to decide now what would be the effect upon such an action then pending, of the two acts of April 19, 1873, (numbers 248 and 249), providing for , the settlement of the business of the Harbor Board and its dissolution. The order striking the cause from the docket of the Circuit Court was erroneous, and must be reversed, and the cause remanded.