Ricker v. Larkin

Lacey, J. The bill was demurred to by the plaintiff in error, and upon hearing the court overruled the demurrer, and the plaintiff in error choosing to abide his bill, the court rendered a decree in favor of the defendants in error in accordance with the prayer of the bill. To reverse this decree this writ of error is sued out. It is insisted that the bill shows that the organization of the “ Elgin Nurseries and Seed Co.” had been completed; hence the relief prayed for was within the control of the corporation itself. The main question arising in the case is, was the organization of the company completed? We are clearly of the opinion it was not. Sec. 4, Chap. 32, E. S., provides that, “ the Secretary of State shall thereupon issue a certificate of complete organization of the corporation making thereof a copy of all papers filed in his office in and about the organization of the corporation and duly authenticated under his hand and seal of State, and the same shall be recorded in a book kept for that purpose in the office of the recorder of deeds in the county where the principal office of such company is located. Upon the recording of the said copy the corporation shall be duly organized and may proceed to business.” It would seem clear without reference to any judicial construction of the above section of the statute that the organization of the company could not he complete without the filing of the copy as required. The grant “ to proceed to business ” is plainly made to depend on such recording. The prohibition to proceed to business need not be in express words. The corporation depends for its powers upon the provisions of the statute either express or implied, and none is granted without the record. But the statute in question has received judicial construction, by both this court and the Supreme Court, both holding to the principle here announced. Bigelow v. Gregory, 73 Ill. 197; Gent v. M. & M. Ins. Co., 107 Ill. 652; Same case reported in 13 Ill. App. 308; Deversey v. Smith, 103 Ill. 378. The case of Cross v. Pinckneyville, 17 Ill. 58, is explained in Bigelow v. Gregory, supra. It is true that the copy of the papers were actually filed in the recorder’s office, but surreptitiously and fraudulently, by the plaintiff in error, and contrary to the agreement of the incorporators and against the will and without the contest of the other proposed members of the proposed incorporation. It is true that the original agreement to incorporate did not require plaintiff in error to give bond, but by mutual agreement a change was made in the agree-, meut in which concessions were mutually made and by which the plaintiff in error agreed to give a bond with security before the completion of the organization. This was binding and should have been complied with. The bill shows a clear case of fraudulent intent on the part of the plaintiff in error to obtain the benefits of the organization without complying with his part of the agreement. The procurement of the recording of the papers fraudulently had no more effect to-make a legal record than though the papers had never been recorded. Haddock v. Haddock, 22 Ill. 388; I. C. R. R. Co. v. McCullough, 59 Ill. 166. According to the allegations of the bill the defendants in error never ratified the act of recording of the copy of the incorporation papers by plaintiff in error. Holding, as we do, that the bill shows that the proposed organization was never completed, it will be unnecessary to notice the argument of plaintiff in error’s counsel based on the supposition that there was a complete, organization. Finding no error in the record the decree of the Circuit Court is affirmed. Decree affirmed.