State ex rel. Thompson v. Colias

DENSON, J. Nicholas Colias and Christo Jebeles, during the year 1900 and for some time prior thereto, did a general mercantile business in the city of Birmingham as partners under the firm name and style of “Jebeles & Colias.” The petition shows that on the 4th day of December, 1900, while they were doing business under said firm name, they, together with one S. Oianoakos, filed their application in writing in the office of the probate judge of Jefferson county, praying to be incorporated under the name of “Jebeles & Colias Company.” On the 6th of December, 1900, the probate judge issued a certificate of incorporation in which it was recited that upon the written application of the parties above named they had been incorporated under the name and style of “Jebeles & Colias Company.” Section 1286 of the Code of 1896 is in this language: “No certificate of incorporation shall issue to any corporation under the same corporate name as that already assumed by another corporation of the state unless it be the successor of such other corporation; nor when the corporate name assumed is that of a person or firm, unless there be joined thereto some word designating the business to be carried on, followed by the word 'company’ or 'corporation.’ If any corporation shall hereinafter assume as its corporate name, the name of a person or firm without the qualification above required in such case, the organization of such corporation is void, and the stockholders are liable as partners.” It will be observed that the certificate of incorporation, when compared with the statute, is defective in failing to use some word before the word “Company,” designating the business to be carried^ on. Section 1282 of the Code of 1896 is in this language: “When any private [518] corporation heretofore or hereinafter created under the laws of this state, has accidently or inadvertently failed to comply with the requisitions of the statute in its organization, it shall be lawful for the president of such corporation to supply such omission by filing with the probate judge who issued the certificate of incorporation, a statement under oath, setting forth such omission and supplying the same, which shall be filed with the other papers of such corporation and recorded. And such filing papers of such corporation and recorded. And such filing shall relate, back to the date of such incorporation, except as tó the rights of third parties which may have intervened.” It is shown by the application of the relator that on the 4th day of December, 1902, a statement in all respects in compliance with section 1282 was filed in the office of the judge of probate of Jefferson county, in which it was shown that the incorporators had by accident, mistake, or'inadvertence omitted to join with the name of “Jebeles & Oolias” any word designating the business to be carried on, and it is asked in the “statement” that the omission may be supplied by inserting the word “Confectionery” immediately after the words “Jebeles & Oolians,” and before the word “company,” wherever the name of the corporation appears in the declaration papers. With the word supplied, the name of the corporation reads as follows: “Jebeles & Oolias Confectionery Company.” The statement, as shown by the application of the relator, was filed with the other papers of the incorporation and was recorded. — Code 1896, § 1282. The insistence of the relator is that the initial effort to incorporate was, on account of the omission pointed out, absolutely void, and, being so, it was incapable of being corrected, notwithstanding the provisions of section 1282. The Supreme Court of the United States, in passing upon the meaning of the words “void and of no effect,” uses this language: “But these words are often used in statutes and legal documents, * * * in the sense of Voidable’ merely — that is, capable of being avoided1 — and not as meaning that the act or transaction is absolutely a nullity, as if it never had existed, in [519] capable of giving rise to an.v rights or obligations under any circumstances.”—Ewell v. Daggs, 108 U. S. 148, 2 Sup. Ct. 408, 27 L. Ed. 682; Inskeep v. Lacony, 1 N. J. L. 112; Matter of N. Y. & L. I. Bridge Co., 148 N. Y. 540, 42 N. E. 1088; C. & P. S. R. R. v. Braillard, 12 Wash. 22, 140 Pac. 382; Van Shanck v. Robins, 36 Iowa, 201; Rheiner v. Union Depot, 31 Minn. 289, 17 N. W. 623; Brown v. Brown, 50 N. H. 538, 552. In the New York case cited supra, the New York & Long Island Bridge Company was incorporated by an act of the Legislature for the purpose of constructing and maintaining a bridge over the East river, between the cities of New York and Long Island, and was given the power to condemn land for this purpose. A section in the incorporating act provided that the bridge should be commenced within two years from the passage of the act, and should be continued without unreasonable delay until the bridge should be completed, or the act and all rights and privileges granted thereby should be null and void. The erection of the bridge was not commenced within two years, and an application by the corporation to condemn land for the approaches of the bridge was resisted on that ground; the theory being that the company had forfeited its franchise.' The court said: “It cannot be said that the words ‘shall be null and void’ disclose the legislative intent to make this clause self-executing. The words ‘null and Amid,’ as used in this connection, clearly mean ‘voidable.’ The Avord ‘void’ is often used in an unlimited sense, implying an act of no effect, a nullity ab initio. In the case at bar it Avas not so employed, but rather in its mere limited meaning.” See cases cited supra. Sections 1282 and 1286 of our Code of 1896 are embraced in article 12 of chapter 28, are pari materia, and must be construed with reference to each other. So construing them, and in the light of the foregoing authorities, it seems to be clear that the word “void,” as used in the latter section, means “Amidable”; in other words, the Avord “Amid” does not carry with it the meaning that the proceeding to incorporate Avould be void in such a sense that they could not be rendered valid by proceed [520] ings had in accordance with section 1282, but they would be voidable unless and until they should be rendered valid by supplying the missing word, as authorized by that section.-—Rheiner v. Union Depot, supra. If, before the omission was supplied, proceedings had been instituted to declare the proceedings to incorporate void, there can scarcely be a doubt that a judgment of ouster would have been rendered; but, the omission having been supplied as provided by the statute (section 1282), we cannot see any reasonable foundation for the contention of the relator. If section 1282 was not enacted for the purpose of curing such.a defect in incorporation proceedings as is shown by the record in this case, then it would be hard to define its office. The application in this case was filed long after the defect in the proceedings had been cured; and, construing the averments of the petition together, it fails to show that the respondents are exercising franchises and privileges not conferred on them by law, or that they are not legally incorporated. It follows that the judgment of the court below must be affirmed. Affirmed. Haralson, Dowdell, Anderson, and McClellan JJ., concur.