Lincoln Park Chapter No. 177 Royal Arch Masons v. Swatek

Mr. Justice Wilkin delivered the opinion of the court: This record presents the question whether the appellant is, by its bill, entitled to any relief' in a court of equity, the' demurrer admitting the facts well pleaded. As the holder of a number of the shares of stock in the North End Masonic Temple Association, organized as a corporation, the appellant is seeking to have that institution declared to be no more than a partnership and have the same dissolved, upon the grounds, first, that it was not organized according to law; and second, that it has not used; or attempted to use, the corporate powers conferred upon it by its charter. It appears from the bill that after the organization of the corporation it erected an extensive building-, which it rented to several orders, and to merchants, etc., and in the course of its career it made a dividend of $600, which was shared by the several stockholders, and in which dividend the appellant participated. The allegations of the bill show the establishment of a corporation defacto', and that its existence as such has been so recognized by appellant. The general rule is, that one who deals with a corporation as existing defacto is estopped to deny, as against it, that it has been legally organized. (Bushnell v. Consolidated Ice Machine Co. 138 Ill. 67.) The bill seeks not only to question the legal organization of the corporation, but to have the same changed into a co-partnership between itself and the other incorporators, and to compel the defendants to account to it and its co-partners. As is said in the case cited: “A partnership is never created between parties by implication or operation of law, apart from an express or implied intention and agreement to constitute the relation,”—quoting from 1 Bates on Law of Partnership, sec. 3. (See, also, Phillips v. Phillips, 49 Ill. 437.) Having participated in its dividends, its lawful existence is not now open to question on the part of appellant; nor can appellant, for the same reason, question the proper use of the powers granted to it. Nor can appellant, by bill in chancery, compel a dissolution of the corporation. It is for the State alone to complain of any mis-user or non-user of the powers conferred in the creation of the corporation. Coquard v. National Linseed Oil Co. 171 Ill. 480, and cases there cited. There being no ground for the interposition by a court of chancery, appellant’s bill was properly dismissed. The judgment of the Appellate Court will be affirmed. Judgment affirmed.