author: Mr. Justice Sheldon

text:
    In the matter of the Petition of Alexander Ferrier.

      Filed at Ottawa June 21, 1882.

    1. Industrial schools—act relating thereto is not unconstitutional, as being in restraint of personal liberty. Section 3 of the act entitled “An act to aid industrial schools for girls,” approved May 29, 1879, which provides for the committing to such a school of dependent infant girls who beg or receive alms while selling or pretending to sell any article in public, or who frequent any street, alley or other place for the purpose of begging, or who have no permanent place of abode, proper parental care or guardianship, or sufficient means of subsistence, or who for other cause are wanderers through the streets and alleys or other public places, or who live with or frequent the company of, or consort with, reputed thieves or other vicious persons, or who are found in a house of ill-fame or a poor house, is not unconstitutional, as being in violation of the Bill of Bights in respect to personal liberty.
    2. Under such act due provision is made for the protection of all just rights, and the institution is not a prison, but a school; and the sending of a young female child there to be taken care of under a proper guardian to be appointed, who otherwise has no one to care for her, is not to be regarded as punishment. The restraint of liberty in such institution is no more than is found in any well regulated school. Such a degree of restraint as is essential to the proper education of a child, is in no just sense an infringement of the inherent and inalienable right to personal liberty.
    3. The power conferred upon the court court under this act is but of the same character as the jurisdiction exercised by the courts of chancery over the persons and property of infants, having its foundation in the prerogative of the Grown, flowing from its general power and duty, as parens patriœ, to protect those who have no other lawful protector. Such an institution is but an agency of the State for the needful and proper control and care of female infants when found to be destitute of it.
    4. Same—of the notice required of proceeding. The statute provides merely that notice shall be given to the parents of such infant female. In this case written notice was served upon the mother, with a copy of the petition, on the day before the trial, and the step-father appeared. It was held there was notice in compliance with the statute, as opportunity was afforded to be present, and to apply for further time if not ready for the investigation.
    5. Jury—right to jury, of twelve. Under the act of 1879 relating to the industrial school, the party sought to be adjudged a dependent infant female is not entitled to a jury of twelve persons, the act only giving six jurors. That provision of the constitution that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” does not apply in such a ease, which is not a. suit according to the course of the common law, but is purely a statutory proceeding, and under a statute enacted since the adoption of the constitution.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Appellee filed a petition in the county court of Cook county, under section 3 of “An act to aid industrial schools for girls, ” approved May 29, 1879. (Laws 1879, p. 309.) The petition set forth that Winifred Breen, the appellant, was a girl nine years old; had repeatedly been picked up by the police and others while wandering about the streets at night; was a truant from school, and had not proper parental care, and was in imminent danger of ruin and harm, etc.
    Three witnesses testified as to the character and habits of the girl, Winifred Breen, stating that she was without proper parental care; that she wandered upon the streets of Chicago at all hours of the day and night; that she had been frequently picked up by the policemen of the city, late at night and miles away from her usual place of abode, and had been confined all night in police stations; that she kept bad company, and was in great danger of being ruined; that the mother of the child is weak-minded, and at times insane, having on one occasion attempted to hang Winifred; that she was unfit to have the control of the child, and incapable of managing her; that the step-father is poor and an invalid, earning only a small salary, and is compelled to be absent from his home the entire day, and he found it impossible to control the girl, and that she had been guilty of thefts and falsehood. The fourth witness, Mrs. Beveridge, stated that she was president of the Industrial School for Girls; that the school is situated in Evanston, in Cook county, on a five-acre tract of beautiful rolling ground,- over which the inmates have free range as a play-ground; that there is no more restraint upon their liberty than that imposed upon children in an ordinary family or institution of learning; that they are taught ordinary household duties, sewing, and the ordinary branches of English education; that parents are permitted to visit their children when they desire, and that children are given places in private families whenever suitable places can be procured, but not without their and their parents’ consent. The girl herself testified that she sometimes ran away; that her mother tried to hang witness, and then tried to hang herself; that she was afraid of her mother; that she knew about this industrial school and wanted to go there. The father of the child, if still living, appears to have been a worthless character,—a professional thief,—who when last heard from, three years ago, was at the Bridewell, and the mother was divorced from him.
    The jury returned a verdict that Winifred Breen was a dependent girl, and that the facts set forth in the petition were true, and thereupon the county judge entered an order that said Winifred should be committed to said Industrial School for Girls, and appointed Mrs. Ellen Woodward, one of the vice-presidents of the school, guardian of the child, in accordance with a provision of the act. The county attorney, whom the court had appointed counsel for the girl, and who appeared for her, took an appeal to this court.
    Section 3 of the act under which this proceeding was taken, is as follows: “Any responsible person who has been a resident of any county .in this State one year next preceding the time at which the petition is presented, may petition the county court of said county to inquire into the alleged dependency of any female infant then within the county, and every female infant who comes within the following descriptions shall be considered a dependent girl, viz: Every female infant who begs or receives alms while actually selling or pretending to sell any article in public, or who frequents any street, alley or other place for the purpose of begging or receiving alms, or who, having no permanent place of abode, proper parental care or guardianship, or sufficient means of subsistence, or who for other cause is a wanderer through streets and alleys, and in other public places, or who lives with or frequents the company of, or consorts with, reputed thieves or other vicious persons, or who is found in a house of ill-fame, or in a poor house. ” The petition is to be verified by oath, and notice is to be given to the parents and guardian. The female infant is brought before the court, and if without counsel, it is made the duty of the court to assign counsel for her, and a trial is had before a jury of six. Section 2 declares: “The object of industrial schools for girls shall be to provide a home and proper training school for such girls as may be committed to their charge. ”
    Mr. Consider H. Willett, for the appellant.
    Mr. James K. Edsall, and Mr. N. M. Jones, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

'It is insisted that the law under which the proceeding was had is unconstitutional—first, as being in violation of the Bill of Bights as to personal liberty, in respect of the provision that no person shall be deprived of life, liberty or property without due process of law, and The People v. Turner, 55 Ill. 280, is relied upon as being a decisive authority in favor of appellant in this respect." That was an application by the father of a boy tor a writ of habeas corpus to the superintendent of the “reform school” of Chicago, to free the boy from an alleged illegal restraint of his liberty, and it was held that the law providing for the commitment to that “reform school” was unconstitutional. That school was established under a statute different and much less careful in its provisions, and nearer in its approach to a criminal enactment, than the one in question. The judge was the only one to decide in the matter. Criminals between six and sixteen years of age, convicted of crime punishable by fine or imprisonment, were confined there. That institution was regarded in that case as a place of confinement, and for punishment, and the commitment to it was regarded as imprisonment.

In the statute now under consideration, anxious provision is made for the due protection of all just rights. To begin, there must be the petition of a responsible person, verified by oath, setting forth the facts, and if there be a parent or a guardian, it must also show that the parent or guardian is not a fit person to have the custody of the infant, there must be notice to the parents, the child must be brought before the court, there is a trial as to the facts by six jurymen, defence by counsel is provided, proof is made before a court of record of the facts alleged, there is the verdict of a jury of six men, and if, by the‘4th section, after the verdict of the jury the judge is of the opinion that the girl should be sent to the industrial school, then he may order that she be committed there. Provision is made for a discharge from the school, when proper, through the managers, and the Governor may at any time order a discharge. This institution is not a prison, but it is a school, and the sending of a young female child there to be taken care of, who is uncared for, and with no one to care for her, we do not regard imprisonment. We perceive hardly any more restraint of liberty than is found in any well regulated school. Such a degree of restraint is essential in the proper education of a child, and it is in no just sense an infringement of the inherent and inalienable right to personal liberty so much dwelt upon in the argument.-

The power conferred under the act in question upon the county court is but of the same character of the jurisdiction exercised by the court of chancery over the persons and property of infants, having foundation in the prerogative of the Crown, flowing from its general power and duty, as parens patrice, to protect those who have no other lawful protector. (2 Story’s Eq. Jur. sec. 1333.) That jurisdiction extends to the care and person of the infant, so far as is necessary for his protection and education, and upon this ground that court interferes with the ordinary rights of parents in regard to the custody and care of their children, for although, in general, parents are intrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that the children will he properly taken care of, and will he brought up with a due education. But whenever this presumption is removed, and the parent is grossly unfit and fails in this respect, the court of chancery will interfere, and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education. (Ibid. sec. 1341.) The statute in question provides that if the court finds that the parent is not a fit person to have the custody of the infant, the court may appoint the president, or any one of the vice-presidents, of such industrial school the guardian of the infant, and such guardian shall permit such infant to be placed under the care and in the custody of such industrial school, and the court here accordingly made such appointment of guardian. It is a statute making provision for the needed control and care of female infants which they are found to be destitute of, and which qiarents should bestow, and when the superintendence in this respect, which is required, is assumed on the part of the State, there should be in the agency which the State makes use of, the same power of needful restraint in the child’s care and education as belonged to the parent. The right to liberty which is guaranteed is not that of entire unrestrainedness of action. Civil government in itself implies an abridgment of natural liberty. “Civil liberty, which is that of a member of society, is no other than natural liberty, so far restrained by human laws (and no farther) as is necessary and expedient for the general welfare.” (1 Black. Com. 125.) It is not natural but civil liberty of which a person may not be deprived without due process of law. There are restrictions imposed upon personal liberty which spring from the helpless or dependent condition of individuals in the various relations of life, among them being those of parent and child, guardian and ward, teacher and scholar. There are well recognized powers of control in each of these relations over the actions of the child, ward or scholar, which may be exercised. These are legal and just restraints upon personal liberty which the welfare of society demands, and which, where there is no abuse, entirely consist with the constitutional guaranty of liberty. See Cooley’s Const. Lim. 339, 342.

We find here no more than such proper restraint which the child’s welfare and the good of the community manifestly require, and which rightly pertains to the relations above named, and find no such invasion of the right to personal liberty as requires us to pronounce this statute to be unconstitutional. The decision in 55 Ill. as to the reform school, we do not think should be applied to this industrial school. The courts in other States have sustained similar laws. Ex parte Crouse, 4 Whart. 11; Roth & Boyle v. House of Refuge, 31 Md. 329; Prescott v. The State, 19 Ohio St. 184; Milwaukee Industrial School v. Supervisors of Milwaukee Co. 40 Wis. 328.

It is objected that there was not reasonable notice given. The statute provides merely that notice to the parents shall be given. There was here written notice served upon the mother, with a copy of the petition, on the day before the trial. The step-father appeared. We think there was notice in compliance with the statute. There was opportunity to be present, and to apply for further time if not ready for the investigation.

A jury of twelve men was demanded and denied, and it is insisted there was error in this denial. The statute provides for a jury of only six. The constitutional provision that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate, ” does not apply. This is not a proceeding according to the course of the common law, in which the right of a trial by jury is guaranteed, but the proceeding is a statutory one, and the statute, too, enacted since the adoption of the constitution. There was not, at the time of such adoption, the enjoyment of a jury trial in such a case. In reference to this subject generally, Judge Cooley, in his work on Constitutional Limitations, p. 319, remarks: “But in those cases which formerly were not triable by jury, if the legislature provide for such a trial now, they may doubtless create for the purpose a statutory tribunal composed of any number of persons, and no question of constitutional power or right could arise.” And see Ross v. Irving, 14 Ill. 171.

The act requires the payment of $10 per month by the county for each girl sent from any county. It is insisted that this is in violation of the provision of the constitution that “the General Assembly shall not impose taxes upon municipal corporations, or the inhabitants or property thereof, for corporate purposes,” etc. This is a minor independent feature of the act, which, if invalid, would not affect the other distinct portions of the act, and hence its consideration is not necessary in this case. It will be time to consider it when the county makes resistance and presents the question for determination.

The judgment of the county court will be affirmed.

Judgment affirmed.

Mr. Justice Walker : I dissent to this opinion and judgment.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    Novel Blair et al. v. James N. Reading et al.

      Filed at Ottawa June 21, 1882.

    1. Supersedeas bond—when a dismissal of the writ of error amounts to an affirmance of the judgment—as affecting liability on the bond. A dismissal of a writ of error for want of prosecution, where the court has jurisdiction of the case, is treated as an affirmance of the decree or judgment below, within the meaning of the usual conditions in a supersedeas bond; but the rule is otherwise when the writ of error is dismissed for want of jurisdiction.
    2. Where the order granting a supersedeas required bond to be given conditioned that the defendant should perform the decree against him in case it should be “affirmed by the dismissal of” the writ of error, and the bond given contained this condition and the words “in case the said writ of error shall be dismissed,” and the writ of error was dismissed by this court for want of jurisdiction, it was held, that the condition must be understood as the same as the order—that is, that in case the decree should be affirmed by the dismissal of the writ, and that the dismissal of the writ for want of jurisdiction was not an affirmance of the decree so as to make the obligors of the bond liable thereon.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.
    Mr. W. T. Hopkins, and Mr. A. W. Bulkley, for the appellants.
    Messrs. Hill & Dibell, for the appellees.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This. action in form is in debt, and was brought on a supersedeas bond. Previous litigation between the plaintiffs in this suit and the principal defendant, resulted in the former obtaining a decree against the latter for several'sums of money, amounting in the aggregate to a considerable sum. That decree defendant desired to have reviewed in the Supreme Court, and for that purpose made an application to a justice of the Supreme Court, at his chambers, in vacation, for a supersedeas, that the proceedings against him might be stayed until the determination of the case on the writ of error he was about to sue out. On presenting a transcript of the decree and other proceedings against him, the justice of the Supreme Court to whom the application was made indorsed on the record an order making the writ of error to be issued therein a supersedeas, in accordance with the provisions of the statute, on defendant giving bond in a sum fixed by such order, with his co-defendants as sureties, which order provided the bond to be given should be conditioned to pay. to plaintiffs the sums of money mentioned in the decree,' in case the decree set out in the transcript should be “affirmed by the dismissal of said writ of error or upon hearing, and for the payment of whatever judgment may be rendered in the Supreme Court.” The supersedeas bond required by the order to be given, was given with sureties, as previously stated. In the bond it was recited what the order of the justice of the Supreme Court making it required it should contain, and the condition was in the usual form, viz., that the principal would perform the decree against him in case the writ of error should be dismissed, or the decree should be affirmed in the Supreme Court, and moreover pay whatever judgment or decree should be rendered against him in the Supreme Court. Breaches on the conditions of the bond were assigned, to which defendants filed six pleas, to all of which, except the second in the series, a demurrer was sustained by the court. A trial was had on the plea of non est factum, which resulted in a judgment in favor of plaintiffs for the aggregate amount of the several sums mentioned in the decree, against the principal defendant.

It will only be necessary to notice matters set up in the special pleas by way of defence to the breaches assigned on the bond declared on. Of course the demurrer admits the facts alleged in the special pleas to be true, and the question raised is, whether they constitute any defence to the action. It will simplify the discussion very much if the exact point at issue shall be first ascertained. It is not claimed the original decree against the principal in the bond was affirmed on a hearing of the cause in the Supreme Court, nor that the Supreme Court- rendered any judgment against him that he did not pay and discharge. It is averred, as breaches of the conditions of the bond, that defendant did not prosecute his appeal with effect, but made default in that regard, and did not pay the sums of money specified in the decree contained in the transcript. It was upon that issue made by the pleadings the cause was tried, and as the matters alleged in defence were deemed insufficient in law to bar the action, judgment was rendered against defendants.

It will be observed the order of the justice of the Supreme Court granting the supersedeas required the bond to be conditioned the defendant should perform the decree against him in case it should be “affirmed by the dismissal of said writ” of error. The bond itself contains this condition, and by the words “in case the said writ of error shall be dismissed” must be understood what the order itself required, viz., that in case the decree shall be “affirmed by the dismissal of the writ.” Otherwise the obligatory part of the bond would be broader and more comprehensive than the order required it should be, and would be inconsistent with itself. As a mat- ■ ter of fact, the decree contained in the transcript was not “affirmed by.a dismissal of the writ” of error in the Supreme Court. It was dismissed for want of jurisdiction in the court to hear the writ at all. That was in no sense an affirmance of the original decree. A dismissal of a writ of error for want of prosecution when the court has jurisdiction of the case, has always been treated- as an affirmance of the decree or judgment, within the meaning of the usual conditions of such bonds. But the rule must be different where the court has no jurisdiction in the premises. , It is for the obvious reason the court has no jurisdiction to pronounce a judgment of affirmance, and it would be a non sequitwr to say a court may affirm a decree when it has no jurisdiction to hear the case for any purpose.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholeield

text:
    John Diversey v. Byron M. Smith and Thomas M. Burkett et al. v. John Plankinton et al.

    „ , Filed al Ottawa June 21, 1882.

    1. Action—whether it survives after defendant’s death. An action to recover a statutory penalty does not survive the death of the defendant, and a writ of error from the Appellate Court to reverse a judgment in favor of the defendant against his executors is properly dismissed.
    2. Stockholders—individual liability—as to the mode in which it may be fixed—under constitution of 1848. Section 2, art. 10, of the constitution of 1848, not having directed any specific way in which “dues from corporations not possessing banking powers or privileges, shall be secured,” and allowing it to be “by such individual liabilities of the corporators as maybe prescribed bylaw,” any means provided by the General Assembly for that purpose would seem to meet that requirement, and should the General Assembly determine to secure such dues by individual liabilities of the corporators, there is no restriction or limitation as to the manner in which it shall be done. It may therefore secure such dues by making the corporators liable individually to penalties, as a reasonable and effective mode.
    3. Same—reservation of power in charter, as limiting the mode of fixing liability of stockholders. A reservation in an amendment to the charter of an insurance company, of the right of the legislature to bring the corporation under the operation of general laws, does not bind the legislature to enact any specific law, and does not operate as a contract with the stockholders that they shall be subjected to any specific additional primary liability on their contracts of subscription. It only gives a discretion to enact such general law as the legislature in its discretion, deems best for the public good, and such laws may be penal in their character as to the liability of stockholders.
    4. Same—as to the nature of the liability of stockholders, whether arising as a penalty, or upon contract. "Where a statute relating to a corporation declares that it shall not transact business until certain preliminary things have been done, and-if it does so transact business in violation of such provision the trustees and corporators shall be liable to the creditors to a given amount, the liability so imposed is a penalty for violating the law, or allowing it to be done. But where the statute declares the corporation may transact business and the stockholders shall be liable for its debts contracted, either absolutely or until some subsequent thing shall be done, their liability is primary, and is based upon a contract. In the other case it is based upon a tort.
    5. Same—insurance companies—requirements of the general law of 1869, as preliminary to right to transact business. Under the general Insurance law of 1869 an insurance company has no authority to commence business and issue policies until after the Auditor of Public Accounts shall have delivered to it a certified copy of its charter and of the certificates required to be filed with the Auditor, and the company shall have filed them in the office of the proper county clerk for record, and any attempt on its part to do so before this is done is in direct violation of the statute.
    6. Same—nature, character and extent of liability of stockholders in insurance companies—under law of 1869. The individual liability of a stockholder, under section 16 of the act in force July 1, 1869, entitled “An act to incorporate and to govern fire, marine and inland navigation insurance companies doing business in the State of Illinois, ” is a penalty prescribed for transacting business before the company has complied with the requirements of that act, by having all its stock paid in, and receiving from the Auditor a certified copy of its charter and of the certificates required to be filed, and is in the nature of a punishment for the violation of the provisions of such act. The act .creates no primary liability by way of contract between the stockholder and creditors of the corporation for the debts thereof, and hence the right of action given does not survive the death of the stockholder.
    7. Although an insurance company is prohibited from commencing business and issuing policies before certain things are done which are essential to constitute a license or authority, if in defiance of such prohibition it should commence business and issue policies; as between it and the other contracting party, who has performed his part of the contract and paid his money, the company will be estopped to deny its authority to make the contract, and it will be liable in an action thereon at the suit of the creditor; but such debts are not made by the statute the debts or liabilities of the trustees or corpora-tors. The latter are not made liable jointly and severally with the company. Their liability to the creditors is not for their indebtedness, but for that of the company, as a penalty for allowing it to do business in violation of law.

      8. The individual liability of a trustee or corporator of an insurance company, under the act of 1869, to creditors of the company, when it has not complied with the law, does not depend upon the fact the creditor has sustained any actual loss or injury by the failure of the trustees or corporators. The creditor is only required to show the company owes him, and that the whole amount of the capital of the company has not been paid in, and a certificate thereof recorded, as provided by the act.
    9. Penal statute—defined. A penal statute is an act by which a for- . feiture is imposed for transgressing the provisions of the act. It may also be remedial in one part, and penal in another. The effect, and not the form, of the statute is to be considered, and if. its object is clearly to inflict a punishment on a party for doing what is prohibited, or failing to do what is commanded to be done, it is penal in its character, and the circumstance that, in punishing, a remedy is likewise afforded to those having an interest in the observance of the statute, is unimportant.
    10. Statute—construction—when affirmative words operate negatively. It is a maxim generally true, that if an affirmative statute, which is introductive of a new law, directs a thing to be done in a certain manner, that thing shall not be done in any other manner, even though there be no negative words. Hence, a provision that certain things shall be done to constitute a license or authority, is equivalent to an express prohibition against the license or authority unless those things shall be done.
    •• Appeals from the Appellate Court for the First District;— heard in that court on writs of error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    The first of these actions, Diversey v. Smith, was an action of debt, brought by John Diversey, for use, etc., a creditor of the Germania Insurance Company, a corporation organized under an act of the legislature of this State for the business of fire insurance, against Solomon A. Smith, appellee’s testator, who was a stockholder in the corporation, to enforce his individual liability as a corporator under the general laws of the State. The defendant demurred to the plaintiff’s declaration, and the Superior Court of Cook county sustained the demurrer. The appellant appealed to the Appellate Court, and during the pendency of that appeal the defendant died. His death was suggested, and on motion a scire facias was issued to the appellee, the executor of the last will of the defendant. The Appellate Court, on appellee’s motion, dismissed the appeal, on the ground that the cause of action did not survive the defendant’s death against his legal representatives. From that order appellant appealed to this court.
    Messrs. Shufeldt & Westover, for the appellant, made the following among other points :
    The constitution of 1848, under which the charter was granted, required that dues from such corporations should be “secured by such individual liabilities of the corporators, or other means, ” as might be prescribed by law. By an amendment to the charter, accepted prior to the passage of the general law of 1869, a right was reserved by the State to bind it in the future by general law. These provisions created each a compact between the company and the State, and the subsequent general law securing creditors by a limited liability of stockholders was but carrying these compacts into effect, and is not a penalty, unless made so by its terms. Arenz v. Weir. 89 Ill. 15; Union Iron Co. v. Pierce, 4 Biss. 327; Butler v. Walker, 80 Ill. 345; Gulliver v. Rœlle, 100 id. 141; Tomlinson v. Jessup, 15 Wall. 457; Miller v. State, 15 id. 478; Sherman v. Smith, 1 Black, 587; McLaren v. Pennington, 1 Paige, 102; In re Reciprocity Bank, 22 N. Y. 9; In re Oliver Lee’s Bank, 21 id. 9; Bailey v. Hollister, 12 id. 112; Stanley v. Stanley, 26 Maine, 191.
    The language of the statute, that the corporators “shall be severally liable for all debts,” etc., “to the amount by him or them subscribed, until the whole amount of the capital of such company shall have been paid in, and a certificate thereof recorded, ” imposes no penalty, but defines an original liability, as required by the constitution. Aspinwall v. Sacchi, 57 N. Y. 331; Bird v. Hayden, 1 Robertson, 383; Corning v. McCullough, 1 Comst. 47; Coleman v. White, 14 Wis. 762; Culver v. Third Nat. Bank, 64 Ill. 529; Fuller v. Ledden, 87 id. 310; Harger v. McCullough, 2 Denio, 123; Norris v.
      Wrenschall, 34 Md. 492 ; Paine v. Stewart, 33 Conn. 516; Young v. Rosenbaum, 29 Cal. 646.
    A statutory penalty is imposed by way of a fine or punishment for the non-performance of a duty imposed by statute, or for the performance of an act forbidden by statute. Cable v. McCune, 26 Mo. 371; Provident Savings Inst. v. Skating Rink, 52 id. 552; , Gregory v. German Bank of Denver, 33 Col. 332; Union Iron Co. v. Pierce, 4 Biss. 327; Derrickson v. Smith, 27 N. J. 166; Craw v. Easterly, 4 Lans. 513; Kelton v. Phillips, 3 Mass. 361; Franklin Glass Co. v. White, 14 id. 286; Ripley v. Sampson, 10 Pick. 370; Stedman v. Evelith, 6 Metc. 119; Bolen v. Crosby, 49 N. Y. 183; Whitney Arms Co. v. Barlow, 41 N. Y. St. 220; Jones v. Barlow, 38 id. 142; Nemmons v. Tappan, 2 Sweeney, 652; Strong v. Sproul, 4 Daly, 326; Barnett v. A. & P. R. R. Co. 68 Mo. 56; Nassau Bank v. Brown, 30 N. J. Eq. 478; Sturges v. Burton, 8 Ohio St. 215; Irvine v. McKeon, 23 Cal. 472; Lawler v. Burt, 7 Ohio St. 341; First Nat. Bank v. Price, 33 Md. 487; Garrison v. Howe, 17 N. Y. 458; Andrews v. Murray, 33 Barb. 354; Shaler v. Bliss, 34 id. 309; Boughton v. Otis, 21 N. Y. 261; Squire v. Brown, 22 How. 45; Halsey v. McLean, 12 Allen, 438; Bank v. Commonwealth, 26 Pa. 451; Kritzer v. Woodson, 19 Mo. 327; Hill v. Frazier, 22 Pa. 230; Norris v. Wrenschall, 34 Md. 492; Cameron v. Seamen, 69 N. Y. 396; Steam Engine Co. v. Hubbard, 101 U. S. 188; Merchants’ Bank v. Bliss, 35 N. Y. 412; Corning v. McCullough, 1 Comst. 47.
    In general, liabilities of this nature, or kindred liabilities, have been held to survive the death of the stockholder. Bailey v. Hollister, 12 N. Y. 112; Burr v. Wilcox, 22 id. 551; Diven v. Duncan, 41 Barb. 520; Diven v. Lee, 36 id. 302.
    There is a clear distinction between a liability that is primary, and therefore ex contractu, and one for a wrong doing and in tort. As an illustration of the former, see Corning v. McCullough, 1 Comst. 47; Allen v. Sewall, 2 Wend. 338;
      Moss v. Oakley, 2 Hill, 265; Bailey v. Blancker, 3 id. 188; Harger v. McCullough, 2 Denio, 119; Ex parte Van Riper, 20 Wend. 614. In illustration of such as are in tort, see Garrison v. Hare, 17 N. Y. 458; Andrews v. Murray, 33 Barb. 354; Shaler v. Bliss, 34 id. 309; Boughton v. Otis, 21 N. Y. 261; Squire v. Brown, 22 How. 45; Halsey v. McLean, 12 Allen, 438; Lawler v. Burt, 7 Ohio St. 341; Derrickson v. Smith, 27 N. J. 166; Bank v. Commonwealth, 26 Pa. 451; Kritzer v. Woodson, 19 Mo. 327; Hill v. Frazier, 22 Pa. 230.
    Mr. John S. Cooper, for the appellee Smith :
    The liability imposed upon stockholders of insurance companies, by section 16 of the act of 1869, is penal in its character, and can be sustained only on that ground. Weidenger v. Spruance, 101 Ill. 278; Gulliver v. Rœlle, 100 id. 141; Gridley v. Barnes et al. 103 id. 211; Merchants’ Bank of New Haven v. Bliss et al. 35 N. Y. 412; Losee et al. v. Bullard, 79 id. 404; First National Bank v. Price et al. 33 Md. 487; Derrickson v. Smith, 27 N. J. L. 166; Cairo and St. Louis R. R. Co. v. Warrington, 92 Ill. 157; Cable v. McCune, 26 Mo. 380; Halsey v. McLean, 12 Allen, 438 ; Sturges v. Burton, 8 Ohio St. 215; Lawler v. Burt, 7 id. 340; Moies v. Sprague, Admr. 9 R. I; Steam Engine Co. v. Hubbard, 101 U. S. (11 Otto,) 188; Richardson v. Aikin, 87 Ill. 138.
    Mr. John H. Thompson, for the appellees Plankinton and others :
    A writ of error against an executor will be abated when the cause of action does not survive. Barrett et ux. v. Gaston, Exr. Breese, 255.
    A provision of law imposing an individual liability for a corporate debt, is to be construed strictly. Gray v. Coffin et al. 9 Cush. 199; Moyer v. Pennsylvania S. Co. 71 Pa. St. 293; Appeal of Means, 85 id. 75.

      The legislature may impose a reasonable penalty for the non-performance of a legal duty, although the duty may have been declared, and its performance enjoined, by the principles of the common law or by a prior statute. Chicago, Rock Island and Pacific R. R. Co. v. Reidy, 66 Ill. 43; Chicago and St. Louis R. R. Co. v. Warrington, 92 id. 157; Burnett v. Chicago and Pacific R. R. Co. 68 Mo. 56.
    The liability imposed by sec. 16 of the general Insurance act of 1869, is a statutory penalty. Weidenger v. Spruance, 101 Ill. 278; Bank v. Price et al. 33 Md. 487; Cameron v. Seaman, 69 N. Y. 396; Derrickson v. Smith, 27 N. J. L. 166; Steam Engine Co. v. Hubbard, 101 U. S. 188; Kritzer v. Woodson, 19 Mo. 327; Cable v. McCune, 26 id. 371; Hill v. Frazier, 22 Pa. St. 320; Harrisburg Bank v. Commonwealth, 26 id. 451; Lawler v. Burt, 7 Ohio St. 341; Sturges v. Burton, 8 id. 215; Halsey v. McLean, 12 Allen, 438.
    When a statute, directly or indirectly, requires a company, its officers or stockholders, to do anything, or prohibits the company or its officers from doing a thing, and imposes a liability for its violation upon either the company, its officers or stockholders, such statute is of a penal character. But when the statute imposes a liability on the stockholders for some benefit to the public, or to some class, and contains no command to do or not to do anything, it is not penal, but creates a primary liability ex contractu upon the stockholder.
   Mr. Justice Scholeield

delivered the opinion of the Court:

In these cases the facts are, in all material respects, similar, and the single question presented by the record, and discussed in arguments of counsel, is common to both. In each the action is debt, upon a policy of insurance issued by a company which was organized under a special charter enacted by the General Assembly long prior to July 1, 1869, ' against a stockholder of the company, who had become such by making, and performing on his part, a contract of subscription for stock, prior, also, to July 1, 1869. Judgments were rendered in the Superior Court of Cook county for the defendants. From those judgments appeals were taken to the Appellate Court for the First District, and while the appeals were there pending, and before argument, the defendants died, testate. The deaths of the defendants were suggested, and thereupon writs of error were sued out and served, making their executors parties. On motion of the executors, the Appellate Court dismissed the writs of error, and gave judgments for costs. To reverse those judgments the present appeals are prosecuted.

For convenience we shall treat the cases as one, and speak of the parties in the singular number only.

If the action is for a statutory penalty, it does not survive the death of the testator, and the writ was properly dismissed, as is conceded by counsel for appellant. 1 Chi tty’s Pleadings, (7th Am. ed.) 103, *104; Hambly v. Trott, Cowp. 372; Barret et ux. v. Gaston, Breese, 255. The question, therefore, is, whether the action is on a contract or for a statutory penalty.

We do not think it needful at this time to discuss whether it was competent for the General Assembly to impose a primary double liability on stockholders in insurance companies, by a law enacted subsequent to the making and performing, on their part, of their contracts of subscription, since, in our opinion, no such law has been enacted, and it will be quite time enough to consider that question when it shall be properly before us for determination. Sec. 2 of art. 10 of the constitution of 1848, directs no specific way in which “dues " from corporations not possessing banking powers or privileges shall be secured.” It allows it to be “by such individual liabilities of the corporators, or other means, as may be prescribed by law. ” Hence any means provided by the General - Assembly for that purpose would seem to meet the requirement, and should the General Assembly determine to secur.e such dues by individual liabilities of the corporators, there is no restriction or limitation as to the manner in which it shall be done. It is therefore impossible to say that it may not be by making the corporators liable, individually, to penalties, because it is manifest this might be a reasonable mode, and a very effective one, too, of securing such dues.

We also think it quite obvious that the reservation in the amendment to the charter of the insurance company of the right of the General Assembly to bring the corporation under the operation of general laws, bound the General Assembly to enact no specific law, and did not opera,te as a contract with the stockholders that they should be subjected to any specific additional primary liability on their contracts of subscription. Had a law imposing additional primary liability been enacted, it would have been pertinent to have inquired whether it was within the power reserved to the General Assembly; but no one can reasonably claim that the mere reservation of power to enact a general law in regard to insurance companies, did of itself constitute such a law. At most it could only be said the General Assembly reserved the right, to be exercised in its discretion, to enact such general laws in regard to insurance companies as, in the opinion of its members, the public welfare should require. We are unable to conceive of a valid reason why such laws might not be penal in their character.

Tn our opinion, therefore, necessarily, neither the constitutional provision nor the reservation in the amendment to the insurance charter referred to, can furnish any aid in determining whether the present action is on a contract or for a statutory penalty. What has been enacted must be determined by an examination of the act itself, the power to so enact not being now in question.

The action is brought under the provisions of “An act to incorporate and to govern fire, marine and inland navigation insurance companies doing business in the State of Illinois, ” in force July 1, 1869, (Rev. Stat. 1874, p. 591,) and the portions of the several sections necessary to a solution of the question before us are as follows: The 1st section authorizes any number of persons, not less than thirteen, to associate and form an incorporated company for the purpose of making insurance, etc. The 3d section requires that “such persons shall file in the office of the Auditor of Public Accounts a declaration, signed by all the corporators, expressing their intention to form a company for the purpose of transacting the business of insurance, as expressed in the 1st section of this act, which declaration shall also comprise a copy of the charter proposed to be adopted by them, and shall publish a notice,” etc. The 7th‘section provides that “it shall and may be lawful for the individuals associated for the purpose of organizing any company under this act, after having published the notice and filed the declaration and charter, as required by the 3d section of this act, and also on filing in the office of the Auditor of Public Accounts proof of such publication, * * * to open books for subscription to the capital stock of the company so intended to be organized, and to keep the same open until the full amount specified in the charter is subs'cribed, ” etc. The 8th section directs how its capital shall be invested. The 9th section provides what real estate may be owned. In the 10th section it is enacted that “the charter and proof of publication herein required to be filed by every such company shall be examined by the Attorney General, and if found conformable to this act, and not inconsistent with the constitution or laws of this State, shall be certified by him to the Auditor of Public Accounts, who shall thereupon cause an examination to be made, either by himself or by three disinterested persons specially appointed by him for that purpose, who shall certify, under oath, that the capital herein required of the company named in the charter, according to the nature of the business proposed to be transacted by such / company, has been paid in, and is possessed by it in money, or in such stocks and bonds and mortgages as are required by the 8th section of this act; * * * and the eorpora- : tors and officers of such company shah be required to certify, , under oath, that the capital exhibited to those persons is bona Jicle property of the company. Such certificate shall be filed in the office of the said Auditor, who shall thereupon deliver to such company a certified copy of the charter and of said certificates, which, on being filed in the office of the clerk of the county where the company is to be located, shall be their authority to commence business and issue policies; and such certified copy of the charter and of said certificates may be used in evidence for or against said company. ”

It thus conclusively appears that until after the Auditor of Public Accounts shall have delivered to the conxpany the certified copy of the charter and certificates, and the company shall have filed them in the office of the proper county clerk, there is no authority whatever for the company to commence business, and issue policies, and any attempt on its part to do so before, is in direct violation of the statute, for a provision that certain things shall be done to constitute a license or authority, is equivalent to an express prohibition against ¡the license or authority unless those things shall be done. “It is,” says Dwarris, “a maxim, generally true, that if an affirmative statute, which is introductive of a new law, directs a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any " other manner.” Potter’s Dwarris on Statutes, 72.

The command of the law then is, business shall not be commenced, and policies issued, unless those things are done .which are required as a license or authority to commence business and issue policies; and to compel obedience to this command, the 16th section imposes a punishment for its violation, namely: “The trustees and corporators of any company organized under this act shall be severally liable for all debts or responsibilities of such company to the amount by him or them subscribed, until the whole amount of the capital of such company shall have been paid in, and a certificate thereof recorded, as hereinafter provided. ” * * “Dues” from such corporations “are secured as prescribed by law, ” in the requirement that the capital of the company “has been paid in, and is possessed by it in money, or in such stocks and bonds and mortgages as are required by the 8th section of this act,” before they are allowed to commence business, and in the enforcement of this requirement by penalties of individual liability upon the. trustees and corporators. Still, although the company is thus prohibited from commencing business and issuing policies before those things are done which are essential to constitute a license or authority, if, in defiance of this prohibition, it should commence business or issue policies, as between it and those with whom it should assume to contract, it would, after the other party had performed his part of the contract and the company had received the benefit of it, be estopped to deny its authority to make the contract, and would be liable thereon in an action at the suit of the creditor. Bradley v. Ballard, 55 Ill. 413; Darst v. Gale et al. 83 id. 136; Peoria and Springfield R. R. Co. v. Thompson, ante, 187. See, also, Field on Corporations, secs. 259, 260, 261; 2 Parsons on Contracts, 790. Such debts or responsibilities are, therefore, legally the debts or responsibilities of the company, and it is to be noted the 16th section does not provide the debts or responsibilities thus contracted shall be deemed and treated as the debts or responsibilities of the trustees or corporators, instead of the company, or jointly and severally of the trustees and corporators and company, but expressly designates them as “the debts or responsibilities of such company. ” The company is treated as primarily liable, and the trustees and corporators are held liable not because of their debt or responsibility, or of their and the company's debt or responsibility, but solely on account of the debt or responsibility of the company.

At common law a trustee or corporator is not liable for a debt contracted by a corporation, and if he shall be made primarily liable for such debt by statute, it must be because the statute in some way makes him a contractor in such case. It must be within contemplation of law, at least, that the company can contract on behalf of trustees and corpora-tors, or on behalf of itself and them. To create such a relation, in the absence of an express contract, the authority would necessarily have to affirmatively appear in the statute. But the statute under consideration, instead of containing language to that effect, prohibits the making of all contracts. It imposes the liability upon the trustees and corporators, not because the company was authorized to contract in their names or on their behalf, or so as to otherwise bind them, but because it prohibited the commencing of business and issuing of policies, and the trustees and corporators, in violation of their duty, caused or permitted business to be commenced and policies to be issued. Sedgwick says : “Penal statutes are acts by which a forfeiture is imposed for transgressing the provisions of the act. ” He moreover adds: “A penal law may also be remedial, and a statute may be remedial in one part and penal in another. ” (Stat. and Const. Law, 41.) In Potter’s Dwarris on Statutes, 74, it is said: “A penal statute is one which imposes a forfeiture or penalty for transgressing its provisions or for doing a thing prohibited. ” It is the effect, not the form, of the statute that is to be considered, and when its object is clearly to inflict a punishment on a party for violating it—i. e., doing what is prohibited, or failing to do what is commanded to be done,— it is penal in its character, and the circumstance that in punishing, remedy is likewise afforded to those having an interest in the observance of the statute, is unimportant.

Accepting it as settled that the liability imposed is not1 a t primary liability, a significant, and, to us, conclusive, fact 1 to be taken into consideration in the character of liability imposed by the 16th section is, that the plaintiff’s right of recovery is totally unaffected by any actual loss or injury he may have sustained by the failure or neglect of the trustees or the corporators. Although he might collect the debt from the corporation, this is no defence. Whether all the capital, or all but a nominal sum, or whether but an insignificant amount of the capital, has been collected and paid in, would obviously be unimportant inquiries. He is only required to show that he is a creditor of the company—that the defendant is a trustee or corporator, and that the whole amount of the capital of such company has not been paid in, and a certificate thereof recorded, as provided in the 10th section of^ the act.

Counsel for appellant refer to and rely upon Corning v. McCullough, 1 Comst. 47, Coleman v. White, 14 Wis. 762, Harger v. McCullough, 2 Denio, 123, Paine v. Stewart, 33 Conn. 516, Young v. Rosenbaum, 39 Cal. 646, Fuller v. Ledden, 87 Ill. 310, Aspinwall v. Sacchi, 57 N. Y. 331, Norris v. Wrenschall, 34 Md. 492, Culver v. Third National Bank, 64 Ill. 529, Steele v. Dunn, 65 id. 298, and Corwith v. Culver, 69 id. 502. These cases are all plainly distinguishable from the present case.

In Corning v. McCullough, the statute provided, in one of its sections, (see. 9,) “that the stockholders of the corporation shall be jointly and severally personally liable for the payment of all debts and demands contracted by the corporation, and that any person having any demand against such corporation may sue any stockholder or director in any court having cognizance thereof, and recover the same, with costs.” The liability was thus unquestionably primary, and bound the stockholders, without limitation, to the payment of all corporate debts. The court, in speaking of it, said: “The personal liability of the stockholder to creditors under this charter, for the debts of the company, is an element of the incorporation which wholly excludes all claim of any stockholder to treat those debts as debts of the corporate body, solely, which he did not contract and is not bound to pay. The stockholders all stand under this act of incorporation on the same ground, and under the same, responsibility, as respects creditors, as they would if unincorporated have stood. ” There was lawful authority to contract debts, and by the act of becoming a stockholder the defendant and the other stockholders became jointly and severally liable with the corporation for the debts. Harger v. McCullough was under the same charter, and deserves no further notice.

In Paine v. Stewart, the liability was of the same character as that imposed in Corning v. McCullough.

In Coleman v. White, the liability was also of like character. The court there said: “We are of opinion that the liability is primary and absolute, and attaches the moment the debt is contracted by the bank; that it is a liability of all the stockholders to all the creditors, on the principle of co-partnership, the stockholders standing on substantially the same footing as though they were partners or unincorporated association, save only that the responsibility of each is limited to a sum equal to his share or shares of stock. Subject to this limitation, they are answerable as original or principal debtors, and their liability more nearly resembles that of co-partners than any other to which it can be compared. ”

Young v. Rosenbaum belongs to the same class of cases. The liability there was primary and absolute. The corporation was lawfully authorized to contract (not prohibited, as here, from contracting,) debts, for which the stockholder was made primarily liable. The court said: “When a debt accrues against the corporation it also accrues against the stockholders, and they remain such debtors until the debt is paid or satisfied.”

In Norris v. Wrenschall, the court distinguishes the case from Bank of Plymouth v. Price et al. 33 Md. 487, which we shall hereafter refer to, and says: “The section we are now considering not only does not forbid the contracting of debts before the capital stock is paid in, but allows it to be done, on condition that those who are stockholders at the time shall become severally and individually liable therefor. ”

In Fuller v. Ledden, the third section of the bank charter expressly provided, that “each stockholder shall be liable to double the amount of stock held or owned by him, and for three months after giving notice of transfer. ” There was affirmative power in the corporation to contract debts, and a primary liability therefor was imposed on the stockholder.

Culver v. Third National Bank, Steele v. Dunn, and Corwith v. Culver, were actions brought under the 9th section of “An act to authorize the formation of corporations for manufacturing, mechanical or chemical purposes, ” (Session Laws of 1857, p. 163,) which provides: “All the stockholders of every such company shall be severally individually liable to the creditors of the company to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company prior to the time when the whole amount of its capital stock shall have been paid in, and a certificate thereof made and filed, as hereinafter required. ” But section 1 of that act provides, that “any three or more persons who may desire to form a company for the purpose of carrying on any kind of manufacturing •»- * * business, may make, sign and acknowledge, * * * and file in the office of the clerk of the circuit court, * * * and also in the office of the Secretary of State, a certificate in writing, in which shall be stated the corporate name of the said company, the object for which it is formed, the amount of the capital stock thereof, the term of its existence, the number of shares of which the said stock shall consist, the number of directors, and the names of the persons who shall be directors,” etti. Section 2 provides, the capital stock shall not be less than $10,000, nor more than $500,000, and that' it shall be paid in within four years after the date of the license of the incorporation. Section 3 enacts, “that when the certificate shall have been filed, as aforesaid, with the clerk of said court, and a duplicate thereof filed in the office of the Secretary of State, the said clerk shall issue a license to the persons who shall have signed and acknowledged the same, on the reception of which they and their successors shall be a body politic and corporate, * * * and be capable in law of purchasing and holding, conveying and disposing, of any such real and personal estate, choses in action and securities, negotiable or otherwise, as may be expedient and necessary to enable the said company to carry on their operations and business named in such certificate. ” By the 8th section, “all subscriptions to the capital stock shall be payable in such sums and at such times as the board of directors may require.” * * * So, there the capital stock was not required to be paid in as here, before a license issued authorizing the company to commence business, but it was sufficient if it was paid in within four years after the date of such license; and instead of being the duty of the directors, as it is here, to have the capital all paid in before commencing business, they might there lawfully defer its payment to any period within the, four years. In short, there the debts for which the stockholders were held liable were contracted pursuant to law, while here those for which they are sought to be held liable were contracted in violation of law.

In substance, the same distinction exists between Aspinwall v. Sacchi, and the present case. There, also, it was provided, when the certificate as to name, etc., had been filed, “and ten per cent of the capital named paid in, the company was entitled to carry on business.” Here, the statute in effect says the thing shall not be done, and if it is done, the trustees and corporators shall be liable, etc. In all the cases referred to the statute says the thing may be done, and the stockholders, etc., shall be liable, either absolutely or until some subsequent thing shall be done. In the one case the liability is in consequence of violating the law, or suffering it to be violated'; in the other the liability is incurred in strict compliance with the law,—in short, in the one case the liability is for a wrong done—a tort; in the other it is upon contract. This may be made more clear by referring to some adjudged cases where the same questions, or questions analogous, have been involved.

In Merchants’ Bank of New Haven v. Bliss et al. 35 N. Y. 412, suit was brought against the trustees of a manufacturing company to recover a debt due the plaintiff from the company. The ground of the action was the neglect of the defendants to file certain reports as required by the law. The question was, whether the action was penal. After quoting the sections of the statute applicable, the court said: “Under these sections the trustees are declared to be jointly and severally liable for all the debts of the company in case of a violation of their provisions. The liability, it must be observed, is not limited to the injury or damage sustained by the creditors in consequence of the violation, but upon failure to file the report, or upon making a prohibited dividend, however small or trifling the amount, the trustees are subjected to the payment of the whole amount of the debts of the company then existing, and for all that shall'be contracted, in the one ease before the report shall be made, and in the other while they shall respectively continue in office. These provisions appear to be severally punitive, inflicted on grounds of public policy for the- protection of creditors, and the prevention of frauds upon the public in respect to the financial condition of such corporations. It is clear that the liability of the trustees is not imposed as an indemnity, because it has no relation to the loss or injury sustained by the party in whose favor the action is given. The action depends wholly upon the statute. There never was any such remedy, or cause of action, in whole or in part, at common law. ” And it was held the action was for a penalty.

In First Nat. Bank of Plymouth v. Price et al. 33 Md. 487, suit was brought in Maryland against certain officers of a Pennsylvania corporation, under a Pennsylvania statute mailing the officers and directors of the corporation liable for the debts of the corporation contracted in excess of the amount of its capital stock. The court, among other things, said: “This liability does not arise upon any contract to which the directors are parties, but is altogether statutory, imposed upon them as wrong-doers, and in its nature penal, and as such can only be enforced within the State where the statute operates.”

In Derrickson v. Smith, 27 N. J. L. (3 Butcher,) 166, suit was brought against the administrator of a trustee of a New York corporation, to recover the amount of a debt due from the corporation, because of the failure of the trustee to file and publish certain annual reports, as required by a New York statute. The court, in speaking of the liability of the defendant, said: “His liability results from the failure of the trustee to comply with the requirements of the statute. It is, in fact, a penalty inflicted upon the trustee for a failure to perform a duty enjoined by the statute. It is immaterial whether that penalty be a specified sum, or the payment of the debts of the Corporation. In either case it is a penalty imposed by statute. Nor is it perceived how the liability of the individual trustee to pay the debts of the corporation can be said, in any proper way, to be founded on contract. It certainly did not result from the contracts made by the corporation, nor from the defendant becoming a stockholder, nor from his accepting the office of trustee, but solely from the omission to comply with the statute. Now, the acceptance of the charter, or the defendant becoming a stockholder, is doubtless an assent to the terms of the charter, but it is, in no appropriate sense, an engagement to pay the debts of the company imposed as a penalty for Violations of the charter. Such liability is clearly the creature of the statute. ” And it was held there could be no recovery.

In Kritzer v. Woodson, 19 Mo. 327, the 19th section of the charter provided, that “if the directors of a corporation shall declare and pay dividend when the corporation is insolvent, or the payment of which would render it insolvent, they shall be jointly and severally liable for all debts that shall thereafter be contracted, as long as they shall continue in office, provided that the amount for which they shall all be so liable shall not exceed the amount of such dividend.” It was held this liability was • for a penalty, and not upon contract. It was said by the court: “It is plain that the section does not make the directors the primary debtors for the excess, for the creditors still have their rights against the corporation, while they have the additional guaranty of the liability of the directors. The words of the act which make them liable for the debts of the company make them liable to ihose who are the creditors holding such debts against the company. The debts are still the debts of the company. ” As has been seen, this is precisely the case here. It is added: “The provisions of the section are penal, and are not to be extended beyond the necessary meaning of the language. ” .

In Lawler et al. v. Burt, 7 Ohio St. 340, an act of the legislature prohibited the issuing and circulating of unauthorized bank paper, and by an amendatory act it was provided “that every stockholder or partner * * * shall be jointly and severally answerable, in their individual capacity, for the whole amount of the bonds, bills, notes and contracts of such bank, hereafter executed, ” and it was held the liability under this was in tort, for a penalty, and not upon contract. See, also, a kindred case, Sturges et al. v. Burton et al. 8 Ohio St. 215.

Halsey v. McLean, 12 Allen, 438, was an action brought in Massachusetts by a creditor of a New York corporation against a stockholder of such corporation. By the statute under which the corporation was organized, it was provided that every company organized under the act should annually, within twenty days from the first day of January, make and publish a report stating the amount of its capital, the proportion paid in, and the amount of all existing debts, “and if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made. ” It was held this was highly penal, refefring to Garrison v. Howe, 17 N. Y. 458, and hence that an action could not be maintained thereon in Massachusetts.

In Cable v. McCune, 26 Mo. 380, the object of the suit was to collect a debt of the corporation from a stockholder because of a failure to publish a certain annual statement. The court, in speaking of the character of the action, said: “Our opinion in this case is based entirely upon the penal character of the statute we are called upon to construe. The corporation is required to publish an annual statement of their condition for the information of the public, and a failure to do so renders the stockholders responsible for a specified class of demands existing prior to or at the time of such publication. The object is to inform the public, who expect to have dealings with such corporations, of their probable responsibility. This liability, in event of there being no required publication, does not depend upon the actual injury which the failure to publish may have occasioned in a given case, but is absolute, dependent only on the proof of publication, or no publication. Such a statute can be regarded in no other light than a penal one. ” Moies v. Sprague, Admr. 9 R. I. 1, Hill v. Frazier, 26 Pa. St. 320, and Steam Engine Co. v. Hubbard, 101 U. S. (11 Otto,) 188, were decided upon a like principle. See, also, Thompson’s Liability of Stockholders, 84.

It would seem still more evident that in case of stockholders in companies organized under special charters, who had fully paid for their stock before July 1, 1869, the liability imposed by section 16 could not be a primary liability. In Gulliver v. Rœlle, 100 Ill. 154, we held such stockholders were brought under the general law by the 19th section thereof, and after referring to the 19th and 21st sections, we said: “Until the certificate required by the 10th section was procured and recorded, a company organized under the act is not authorized to transact business, and when companies specially organized were brought under the provisions of the general law, it devolved on them to procure a similar certificate, and record the same, to authorize them to continue in business, and to relieve the shareholders of the liability imposed by the 16th section. ” And in Weidenger v. Spruance, 101 Ill. 285, we said, after quoting the 16th section : “The object of this was, unmistakably, to compel such companies, before proceeding further, to have their entire capital paid in. * * * It is, in effect, therefore, saying to old companies whose capital is not all paid in: ‘Proceed no further. Stop right here until all your capital stock is paid in; and if you shall disregard this mandate, your trustees and corporators shall be liable for all debts or responsibilities you shall hereafter create.’ This is but the imposition of a penalty. ” And again, in answer to the objection that such a liability impaired the obligation of the contract of subscription of the stockholder, we said: “The liability upon the stockholder is not because he made a contract, which he has performed, to take and pay for so much stock, but because he, as a member of the corporation, and, therefore, a responsible agent in controlling and causing to be executed the corporate powers and functions, has allowed to be done, or failed to prevent the doing of, that which the law prohibited. As a punishment for the wrong he is responsible for, he is made liable to those injured thereby to the extent of his interest in the corporation, and of his agency presumed therefrom in causing or permitting the injury.” As we have before seen, there is a slight inaccuracy in the expression here, although we still think the main idea is entirely correct. The liability is not, in fact, to those alone who are injured, -but exists equally where no actual injury has been done, as, for instance, where the corporation is abundantly able to pay all its debts; but the liability is for a wrong done to the public which, presumably, to some extent, is a wrong, also, to every creditor.

In our opinion, counsel are entirely mistaken in saying “the statute does not prescribe some _new duty, or forbid some wrongful act, and declare this liability as a penalty. ” It forbids the wrongful act of proceeding with business and issuing policies when the capital stock is not all paid in and the certificates required by the 10th section are not filed, and declares this liability in consequence of—in other words, as a punishment for—that wrongful act. We repeat, the liability is because of the wrong,—i. e., the failure to perform the duties enjoined by the statute, and not upon the contract of subscription.

Precisely the same question was before us in Gridley et al. v. Barnes et al. ante, 211, and we there reached the same conclusion we have reached here; and the question was again carefully considered on petition for rehearing in that case, in connection with the arguments in the present case.

We see no cause to disturb the judgments below, and they will therefore be affirmed. ■

Judgments affirmed.


author: Mr. Justice Walker

text:
    The Mutual Union Telegraph Company. James R. Lockie v.

      Filed at Ottawa June 21, 1882.

    1. Eminent domain—rights acquired by condemnation for telegraph purposes. A telegraph company, by a judgment condemning land for its use under the Eminent Domain act, does not acquire the fee to the land, or the right to use it for any other purpose than to erect telegraph poles and suspend wires upon them, and maintain and repair the same, and use the structure for telegraph purposes. This, of course, gives the company the right, at all times, when necessary to construct or to repair the line, to enter upon the strip condemned, doing as little damage as possible. The company can not cultivate such strip, or take exclusive possession of it, or enjoy it for any other purpose. The only exclusive right of occupancy the company acquires is the ground occupied by the poles erected for telegraph purposes.
    2. Same—width of strip that may be acquired. The statute does not designate the width of the strip of land that may be condemned for telegraph purposes, but only authorizes such companies to acquire such an amount of land as may be necessary; and where only one line of poles is specified in the petition, and the evidence does not show that a half a rod in width is an unreasonable amount of land, the judgment condemning that much of the land will be sustained, and will be construed to authorize the erection of but one set of poles.
    Appeal from the County Court of Livingston county; the Hon. Robert R. Wallace, Judge, presiding.
    This was a proceeding instituted by the telegraph company under chapters 47, entitled “Eminent Domain, ” and 134, entitled “Telegraph Companies, ” of the Revised Statutes of 1874, by petition to the county court of Kankakee county, and change of - venue to Livingston, where a trial was had, with a jury, a verdict rendered, and judgment for $50, and an appeal taken to this court by Lockie, the defendant land owner. It seems the strip of land, eight and one-quarter feet wide, sought to be condemned, lies along the right of way of the Illinois Central Railroad Company. Appellant holds the view that the condemnation of this strip for the use of the telegraph company will render it necessary to erect and maintain a fence along the line of this new right of way, and that the expense thus to be incurred will devolve on the land owner. Appellant contends that the matter of that expense was not properly considered on the trial below.
    Mr. William Potter, and Mr. O. G. Bartlett, for the appellant.
    Mr. H. K. Wheeler, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This question turns on the true construction of the Eminent Domain statute. What right does the telegrapk company acquire by the judgment of condemnation? It surely was not intended that it should be the fee to the land condemned. The language of the act does not require or sanction such a construction, and to so hold would violate the manifest intention of the legislature. Nor can it be fairly held that it confers the right to use it for any other purpose than that for which it is condemned. The company can not cultivate or take exclusive possession of it, or enjoy it for any other purpose than to erect telegraph poles and suspend wires upon them, and maintain and repair the same, and to use the structure for telegraph purposes, and this is all the petition asks or the statute authorizes. This, of course, gives the company the right, at all times, when necessary to construct or to repair the line, to enter upon the strip condemned, doing as little damage as possible. By designating the width of the strip in the condemnation proceedings the company acquires no right to exclude the owner of the soil from the use of the land. That remains as it was - before, except the company has acquired an easement on the strip condemned to so enter for the purpose of erecting and repairing the line. The only exclusive right of occupancy the company acquires by such a proceeding is the ground occupied by the poles erected for telegraph purposes. These are the rights intended to be conferred by the law, and are all that were or can be acquired under it, and the judgment in this case conferred no more.

It therefore does not become necessary for the appellant to erect a fence to separate this strip from the remainder of his land. Nor does it appear from the evidence that a half of a rod in width is an unreasonable amount of land over which a telegraph company may acquire the right to erect and repair its line. The statute only authorizes such companies to acquire such an amount as is necessary. Nor does the petition specify the erection of more than one set of poles, and the judgment will not be construed to authorize more.

In this view of the case we are unable to perceive any error in the judgment, and it must be affirmed.

Judgment affirmed.


text:
    Peter W. Field et al. v. Eric E. Anderson.

      Filed at Ottawa June 21, 1882.

      1. Trespass—levy and sale under execution—effect of subsequent reversal of the judgment. Where an execution, fair on its face, is issued on a judgment of a court of general jurisdiction having jurisdiction of the subject matter and of the parties, and levied on a stock of goods which are sold to a third party by the officer, the plaintiff in the execution will not .be liable in trespass, notwithstanding such judgment may have been reversed after the levy and sale, for error. The acts being lawful when done, can not be made tortious by a reversal of the judgment.
    2. Reversal of judgment—right of restitution. After the reversal of a judgment, the prevailing party is entitled to restitution of the money received under the judgment. He may recover the money collected on it by levy and sale to a third party, as so much money had and received to his use, but there is no liability as for a trespass for goods seized and sold prior to the reversal, under an execution issued upon the judgment.
    3. Appeal from Appellate Court—the record alone will be considered. This court, on error or appeal, will not notice any proceedings had in the Appellate Court in a different case, which are not presented in the transcript of the record before it, to see on what grounds that court reversed a judgment, nor can it look to the report of such case in that court, where the record shows nothing as to such report.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G-. Bogers, Judge, presiding.
    Mr. D. Blackman, for the appellants :
    Trespass is not sustainable whenever the injury is occasioned by regular process of a court of competent jurisdiction. Bassett v. Bratton, 86 Ill. 155.
    And where the judgment is reversed after the sale of defendant’s property, he may recover the money as so much money had and received to his use. McJilton v. Love, 13 Ill. 494.
    Beyond this it imposed no liability. Camp v. Morgan, 21 Ill. 257; Clayes v. White, 83 id. 540.
    To make him liable there must be a defect of jurisdiction. Johnson v. Von Kettler, 66 Ill. 63; Johnson v. Maxon, 23 Mich. 129; Clark v. Pinney, 6 Cow. 300 ; Langley v. Warren, 3 N. Y. 327; Scholey v. Halsey, 72 id. 578; Magee v. Kellogg, 24 Wend. 32; Cummings v. Noyes, 10 Mass. 433; Delano v. Wilde, 11 Gray, 17; Raun v. Reynolds, 18 Cal. 275; Galpin v. Page, 18 Wall. 375.
    The judgment prior to the reversal is a sufficient justification to the plaintiff for all acts done in enforcing it. Freeman on Judgments, sec. 482.
    The reversal of a judgment can not have a retrospective effect, and make void that which was lawful when done. Bank of the United States v. Bank of Washington, 8 Pet. 19. For, as a general rule, there is no trespass by relation. Cooley on Torts, 96; Bacon v. Kimmel, 14 Mich. 207.
    When no trespass is committed by the officer serving the execution, the plaintiff directing is not liable. Wing v. Hussey, 71 Maine, 185; Johnson v. Von Kettler, 66 Ill. 63; Develing v. Walton, 83 id. 390.
    The execution was never quashed, vacated, set aside or superseded, as illegally, unduly or irregularly.sued out. A party is liable for suing out irregular process, not for the errors in the judgment. Hayden v. Shedd, 11 Mass. 502.
    Messrs. Hutchinson & Partridge, for the appellee :
    Process which has been set aside as void or irregular, is no justification for acts done under it, to the party who sues it out. Parsons v. Lloyd, 2 W. Bl. 846; Barker v. Braham, 2 id. 868; Bates v. Pilling, 6 B. & C. 39; Collett v. Foster, 2 H. & H. 355; Codrington v. Lloyd, 8 A. & E. 677; Wooley v. Clarke, 5 Barn. & Ald. 746; Wehle v. Butler, 43 How. 5 ; Lyon v. Yates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659.
    The judgment and execution under which appellants sought to justify, had been set aside and vacated before the beginning of this suit, as void, on account of irregularity in the entry of said judgment. Anderson v. Field et al. 6 Bradw. 307.
    Trespass is a proper remedy to recover damage done to the plaintiff by a void or irregular judgment or writ, which has been set aside for that cause before the beginning of the trespass suit. We cite cases ante under our first point, and also Lorimer v. Lule, 1 Chitty, 134; Tidd’s Practice, 568, 1032; 2 Addison on Torts, sec. 831.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of trespass, brought to recover damages for breaking and entering into the store of the plaintiff and taking and converting his goods, wherein the plaintiff recovered, and the defendants appealed.

We find nothing in this record to authorize the maintenance of this action of trespass. It is the case of a seizure and sale of goods under execution, the sale being to a third person, the subsequent reversal on appeal of the judgment upon'which the execution issued, and this suit, afterwards brought by the defendant against the plaintiffs in the execution, for the breaking and entering into premises and making such seizure and sale. The judgment under which the goods were taken was rendered by the Superior Court of Cook county on cognovit, and the reversal was by the Appellate Court for the First District, on appeal. The judgment was in due form of law, by a court of general jurisdiction having-jurisdiction of the subject matter and of the person of the defendant, by the cognovit of his attorney, and the execution was fair and regular on its face, the sale under execution being to third persons,—innocent purchasers,—and the judgment not reversed until some six months afterward, for error. Such is the case which the record presents, and under such circumstances the law is well settled that trespass does not lie against the plaintiffs in execution. The acts were lawful when done, being under and by virtue of regular process of a court of competent jurisdiction. The reversal of the judgment did not have a retroactive effect, and make tortious that which, when done, was lawful. The judgment prior to the reversal was a sufficient justification to the plaintiffs therein for all acts done in enforcing it, for an erroneous judgment is the act of the court. After a reversal the defendant is entitled to restitution from the plaintiff of all obtained under the judgment. He may recover the money collected upon it as so much money had and received to his use, but there is no liability of the plaintiff as for a trespass for the goods seized and sold under the execution. Freeman on Judgments, sec. 482; Bank of the United States v. Bank of Washington, 6 Pet. 8; McJilton v. Love, 18 Ill. 494; Camp v. Morgan, 21 id. 257; Bassett v. Bratton, 86 id. 155.

It was said by Cowen, J., in Clark v. Pinney, 6 Cow. 300: “Trespass surely would not lie for collecting the amount of a judgment which was merely erroneous.” The answer made for appellee is, that trespass is a proper remedy to recover damage done to the plaintiff under a void or irregular judgment or writ which has been set aside for that cause, and. the averment is made that the judgment was set aside by the Appellate Court because, among other reasons, it was entered by the mere unauthorized act of the clerk of the Superior Court, in term time, without any judgment having been rendered by said court. Surely nothing of this appears by this record. The record shows a regularly entered judgment by the Superior Court, on appearance of the respective parties by their attorneys, and shows no motion in that court to set aside the judgment. All it shows of the action of the Appellate Court is, the mere judgment of reversal for manifest error appearing, and the remanding order.. No other reason for-the.reversal appears than that it was for manifest error. All that the record shows is a reversal for error, with no intimation wherein the error consisted.

We are referred to the report of the case in 6 Bradw. 307, of the Appellate Court Reports, as giving the reasons for the reversal. That is entirely outside of this record, the record showing nothing whatever as to that report.

It "follows that upon the showing by this record there was error in the giving and refusing of instructions based upon the theory that the judgment and execution were no justification.

The judgment of the Appellate Court is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Joseph Boyd v. The Town of Farm Ridge.

      Filed at Ottawa June 21, 1882.

    Highway—penalty for continuing partial obstruction after notice. The building of a fence upon a road, whether across the same or longitudinally with the road, is an obstruction thereof, within the meaning of section 58 of the Road law of 1874, and the person so obstructing is liable to the statutory penalty for suffering such fence to remain upon the road after being ordered to remove the same by the highway commissioners, although the penalty for the original obstruction may be barred by the Statute of Limitations.
    Appeal from the Appellate Court for' the Second District ;—heard in that court on appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Blanchard & Blanchard, for the appellant.
    Messrs. Mayo & Widmer, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is a prosecution against Joseph Boyd, the appellant, for neglecting and refusing to remove a fence built by him upon a public highway, after having been notified to do so by the proper authorities, as required by law. His liability for the original obstruction of the highway is barred by the Statute of Limitations, and it is claimed by his counsel the statutory liability for permitting an obstruction to remain after an order by the commissioners of highways to remove the same, has no application to a case like this, and this is really the only question in the case.

Section 58 of the Road and Bridge law provides: “If any person shall injure or obstruct a public road by falling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, or by encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon, or by turning a current of water so as to saturate or wash the sanie, or shall leave the cuttings of any hedge thereon for more than five days, he shall forfeit for every such offence a sum not less than three dollars nor more than ten dollars, and in case of placing any obstruction on the highway, an additional sum of not exceeding three dollars per day for every day he shall suffer such obstruction to remain after he has been ordered to remove the same by any of the commissioners of highways, complaint to be made by any person feeling himself aggrieved.” (Laws 1874, p. 921, Cothrans’ Stat. p. 1318, Session Laws 1877.)

It is contended by counsel for appellant, that where a fence is constructed along a public highway, leaving a considerable portion of it unobstructed, as was the case here, it is, in the language of the statute, a mere encroachment, and not an obstruction, and hence it is concluded that appellant is not obnoxious to the additional penalty for permitting an obstruction to remain after notice by the commissioners of highways to remove it. As we understand counsel, it is conceded if appellant had built the fence across the road so as to obstruct travel altogether, he might properly have been convicted for neglecting to remove an obstruction, but that inasmuch as the fence only occupied a part of the road, and did not entirely obstruct travel, although it extended longitudinally over the road its entire length, it is claimed no liability attached for refusing to remove the fence after notice, on the ground it was a mere encroachment, and not an obstruction. We do not think this is a proper construction of the act. To hold so would be to make the liability of the accused depend, in every case of this kind, upon the direction or course of the fence with respect to the road, or upon whether its construction caused a total or partial obstruction of the highway, and we can not believe the legislature ever intended the guilt or innocence of one prosecuted under the statute should be made to depend upon matters so inconsequential as these. The object of the act was to prevent all obstructions of highways, whether total or partial, and in specifically pointing out such as might be caused by the building of fences, it was to the legislature a matter of total indifference whether they might happen to be built along or across the highway, for in either case there would be an obstruction, and the failure to remove it, after notice, would render the party placing it there liable.

The judgment will be affirmed.

Judgment affirmed.