Appeal from a judgment of the Superior Court of the City and County of San Francisco.
Attorney General W. H. H. Hart, P. O. Chilstrom, and T. V. Cator, for Appellant.
James Alva Watt, for Respondent.
JUDGES: Temple, J. Henshaw, J., and McFarland, J., concurred.
This is an information in the nature of a quo warranto to have it adjudged that the defendant is exercising corporate functions without right, and to enjoin it from doing so.
The complaint states that the defendant is doing business as a corporation; that it has a board of directors, a president, and a corporate seal; that it has capital stock upon which it has levied an assessment, is transacting business in corporate form, and claims in good faith to be a corporation; that the corporators have executed, acknowledged, and filed articles of incorporation, which are not set out at large in the complaint.
The articles of incorporation are executed in the manner, and are in substance and form as required by the general provisions of the code for the creation of private corporations, but it is contended that the articles are defective because one of the purposes for which it was formed is expressed as being: "To buy, lease, sell, mortgage, and otherwise deal in. .. . railroads, tramways, and rights of way; to buy, lease, sell, mortgage, operate, construct, and maintain railroads, tramways," etc., and the incorporation was not constituted as the code requires railroad corporations to be.
The general purposes for which the company was formed was to manufacture lumber and all articles made of wood -- in other words, to own and run a sawmill. In such business it is frequently necessary to have tramways and railroads as parts of the manufacturing plant. The articles in question would not authorize the corporation to buy, lease, or operate a railway for traffic. Perhaps it was not necessary to make special mention of this part of the manufacturing appliances, but such mention cannot vitiate the incorporation. Such an incorporation could not use the right of eminent domain to acquire rights of way.
We think the court properly sustained the demurrer.
The court refused to allow the plaintiff to amend the complaint. This is generally a matter of absolute right, and when it is refused the court must be able to see that the complaint cannot be so amended as to state a good cause of action. This the court will not often be able to do, but I think it was properly so determined here.
The judgment is affirmed.