Indian Protective Ass'n v. Gordon

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. The first question is as to the right of the Indian Protective Association to maintain the bill after the proclamation of the governor of Delaware had annulled its certificate of incorporation. The complainant does not deny the issuance of the proclamation of the governor, or the validity thereof. It claims the right to maintain the suit by virtue of sec. 40 of the General Incorporation Laws of the State of Delaware, a pamphlet copy of which has been produced and agreed upon as containing said laws. Sec. 40 reads as follows: “All corporations, whether they expire by their own limitation, or are otherwise dissolved, shall nevertheless be continued for the term of three years from such expiration or dissolution bodies corporate, for the purpose of prosecuting and defending suits by or against them, and-of enabling them gradually to settle and close their business, to dispose of and convey their property, and to divide their capital stock, but not for the purpose of continuing the business for which said corporation shall have been established.” The only provisions relating to dissolutions to be found in this act are in secs. 39, 47, and 67. Sec. 39 provides for volun [557] tary dissolution. Sec. 47 relates to dissolution and forfeiture by decree of the court of chancery. Sec. 67 provides for forfeiture for failure to commence business in two years. This corporation was not dissolved or forfeited under either of the foregoing sections. Referring to the corporation taxing act, passed on the same day, we find that sec. 10 provides that if any corporation thereafter created shall fail to pay the tax assessed against it under said law, “the charter of such corporation shall be void, and all powers conferred by law upon such corporation are hereby declared inoperative and void, unless the governor shall, for good cause shown to him, give further time for the payment of such taxes, in which case a certificate thereof shall be filed by the governor in the office of the state treasurer, stating the reasons therefor.” Sec. 13 makes it a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court, for any person or persons to exercise or attempt to exercise any powers under the charter after the issuing of the proclamation. Sec. 16 provides that when a charter shall become inoperative or void by proclamation, or by operation of law, for nonpayment of taxes, the secretary of state may, upon satisfactory settlement by payment of taxes accrued, and penalty, permit the corporation to be reinstated, and entitled to all of its franchises and privileges. We are of the opinion that the Indian Protective Association was not entitled to maintain this suit by virtue of the provisions of sec. 40 of the incorporation statute. It had not been dissolved in any of the ways provided therein. In fact it was not dissolved at all. By the proclamation of the governor, under the express provision of the franchise tax act, its incorporation became inoperative and void, that is to say, as if it had never existed. This was the penalty imposed for nonpayment of its taxes. The liberal rule of the incorporation act allowing dissolved corporations three years’ continuance of existence for the purpose of winding up their affairs was not followed in the franchise act. Under it, as we have seen, it became an offense to exercise, or attempt to exercise, any corporate powers after the issue of the proclamation. The corporation was not dissolved by the proclamation; it was as if its certificate had never issued. [558] By paying, the accrued taxes and penalty it could have reinstated itself as a corporation, and, by observing the law, continued the exercise of its franchises: This, a dissolved corporation-could not do. The purpose of the -law was to secure the payment of taxes, and this would be thwarted by allowing the corporation' thereafter to continue its existence for three years, as permitted in the case of dissolved corporations. • ■: The Indian Protective Association might have prevented the-issuance' of the proclamation by compliance with the law; or,; within two years, it might have been reinstated by compliance with-'the provisions of sec. 16. Having failed to avail itself-of either mode of relief, the association lost all claim to recognition as a-corporation-for any purpose whatever. Having no corporate existence, it cannot be recognized to maintain this suit. 2. It is'very doubtful, under the testimony, whether the assignment was ever made to the Indian Protective Association at all. The assignment under which it claims was in blank, and its name was not inserted therein until after the institution of this suit. Henderson appears,-long prior thereto, to have assigned his interest in the fees to Butler and Yale. Nor does it appear that Henderson, while denying the assignment to Butler and Vale, has recognized the right of the association to the fee of $5,000, awarded him by the judgment of the court of claims,notwithstanding its offer to credit that sum or its claim in this case. But assuming that the assignment was intended for the benefit of the association, when made, Henderson, who held it, was one of the four members of the association, and was its secretary, treasurer, general manager, and general attorney. As such he filed an intervention, in its name, in the proceeding before the court of claims. As the corporation, as such, had rendered no service to the Indians, the court of claims rightly denied it any participation in the benefits of the appropriation act. As Henderson and May, under whom the association claimed, had rendered services, the court of claims made awards to them of $5,000 and $3,000 respectively. Neither disclaimed, and the judgment was so entered. [559] Even if the association could be regarded as' an existing corporation for the purpose, of winding up its affairs, it would be bound by the- judgment of the court of claims, by reason of the fact not only that that it was a party thereto, but also by its re? lations with Henderson. See Robertson v. Gordon (present term) ante, 539. Eo’r the reasons given the decree will be affirmed, with costs. Affirmed. An appeal to the Supreme Court of'.the. United States was allowed March 8, 1910, on application of the appellant, .