S the ground that it is a losing concern, without con. clusive evidence that its success is impossible. But the minority of a failing concern may obtain a decree of dissolution." Even a single shareholder may in that case maintain procceedings to dissolve the corporation.o If future success be proven to be impossible, a decree of dissolution will be granted, notwithstanding that its managers, drawing large salaries, may strenuously oppose a discontinuance of business until the last penny of its resources be exhausted. Under the New York Code of Civil Procedure, "if a majority of the directors, trustees, or other officers, having the management of the concerns of a corporation created by or under the laws of the State, discover that the stock, effects and other property thereof are not sufficient to pay all just demands, for which it is liable, or to afford a reasonable security to those who may deal with it, or if, for any reason, they deem it beneficial to the stockholders that the corporation should be dissolved, they may present a petition to the supreme court, or to a superior city court of the city where the principal office of the corporation is located, praying for a final order dissolving the corporation, as prescribed in this title.”8 quity ectors terest nd bas dels ar be tion UD LI 1 Mickles v. Rochester City Bank, 11 Paige, 118, 126; 42 Am. Dec. 103. 2 That is, other than judgment creditors: Cole v. Knickerbocker etc. Ins. Co. 23 Hun, 255. Cf. Belknap v. North America etc. Ins. Co. 11 Hun, 282. 3 Paulsen v. Van Steenburgh, 65 How. Pr. 342; Cole v. Knickerbocker etc. Ins. Co. 23 Hus, 255; Belknap v. North America etc. Ins. Co. 11 Hun, 282. 4 Pratt v. Jewett, 9 Gray, 34; In re Suburban Hotel Co. Law R. 2 Ch. 737. See, in this connection, Gilman v. Greenpoint Sugar Co. 4 Lans. 483; Fountain Ferry etc. Co. v. Jewell, 8 Mon. B. 140; In re London Suburban Bank, Law R. 6 Ch. 641; In re Joint Stock etc. Co. Law R. 8 Eq. 146. Cf. In re Pyrolusite Manganese Co. 29 Hun, 429; Denike v. New York etc. Co. 80 N. Y. 599. 5 Masters v. Eclectic etc. Ins. Co. 6 Daly, 455; Marr v Union Bank, 4 Cold. 484; In re Factage Parisien (Limited), 31 Law J. Ch. 140; S. C. 13 Week. R. 214, 530; In re Great Northern etc. Mining Co. 17 Week. R. 462. 6 Ward v. Sea Ins. Co. 7 Paige, 294; Pratt v. Jewett, 9 Gray, 34; In re Suburban Bank, Law R. 7 Ch. 641; In re Suburban Hotel Co. Law R. 2 Ch. 737, 750; In re Joint Stock etc. Co. Law R. 8 Eq. 146; Cramer v. Bird, Law R. 6 Eq. 143. But see Curien v. Santini, 16 La. An. 27; Polar Star Lodge v. Polar Star Lodge, 16 La. An. 53; and Cook on Stock & Stockh. § 632. 7 Marr v. Union Bank, 4 Cold. 484. Acc. In re Tumacacori Mining Co. Law R. 17 Eq. 534; In re Factage Parisien (Limited), 34 Law J. Ch. 140. Cf. Masters v. Eclectic etc. Ins. Co. 6 Daly, 455. 8 N. Y. Code Civ. Proc. § 2419; In re Importers' etc. Exchange, N. Y. Ct. of Com. P. (1888); 4 R'y & Corp. Law J. 393, construing this section. § 583. Grounds upon which creditors and shareholders may obtain a dissolution.—The distinction between the grounds sufficient to warrant the dissolution of a corporation at the suit of its shareholders or creditors, and the grounds upon which the State may institute proceedings to forfeit or vacate its charter, should be borne in mind. There are many circumstances under which the State might interfere, yet where, if it waive its right to enforce a forfeiture, the shareholders or corporate creditors may not question its exercise of discretion. The insolvency of a corporation, however, is one of the grounds of forfeiture of a charter by the State,' which may also constitute the basis of proceedings on the part of its stockholders or creditors for the purpose of dissolution; 2 but proceedings in insolvency are not necessarily a ground for a decree of dissolution, for after the payment of its debts, there is no impediment to its acquiring other property and resuming business.3 Such instances, however, are rare. In proceedings to dissolve a corporation upon the ground of insolvency, neither the profits which it may derive in future, nor the liabilities which it may thereafter incur, are to be taken into account. While a corporation is not dissolved by the mere fact that its corporate 5 officers have resigned, or that their terms have expired, and that they have abandoned their trust before the election of their successors, yet if the shareholders refuse to elect other officers to serve in their stead, this will constitute a ground for proceedings to dissolve the corporation. It has been held that, although the corporation be inert, and the corporate officers, having become non-residents, have ceased to carry on the business, it is not competent for a minority of the shareholders to institute proceedings for the appointment of a receiver and a distribution of the corporate assets. The misconduct of corporate officers will not enable a minority of the shareholders to maintain proceedings looking to a dissolution of the company, where the rights of innocent shareholders would be prejudiced thereby. Failure to comply with the statutory directions with respect to calling the first meeting of shareholders is not a ground for dissolution. 1 Vide infra, § 585. Barclay v. Talman, 4 Edw. Ch. 123, 129. 3 Coburn v. Boston etc. Manuf. Co. 10 Gray, 245. Vide supra, § 576. 4 In re Tumacacori Mining Co. Law R. 17 Eq. 534; In re European Life Assurance Society, Law R. 9 Eq. 122; In re Suburban Hotel Co. Law R.2 Ch. 737. See, also, In re Factage Parisien, 34 Law J. Ch. 140; S. C. 13 Week. R. 214, 330; In re Great Northern etc. Mining Co. 17 Week. R. 462. Cf. Masters v. Eclectic etc. Ins. Co. 6 Daly. 455; Hardon v. Newton, 14 Blatchf. 376; Hugh v. McRae, Chase's Dec. 466. 5 Vide supra, § 574. 6 Bruc v. Platt, 80 N. Y. 379; Curry v. Woodward, 53 Ala. 375; Brown v. Union Ins. Co. 3 La. An. 177, 182; Knowlton v. Ackley, 8 Cush. 93. 7 Cook on Stock and Stockh. § 632; Croft v. Lumpkin etc. Mining Co. 61 Ga. 465. See, however, Verplank v. Mercantile Ins. Co. 1 Edw. Ch. 84. 8 Hardon v. Newton, 14 Blatchf. 376; People v. Albany etc. R. R. Co. 55 Barb .311: Fisk v. Chicago etc. R. R. Co. 53 Barb, 513; Belmont v. Erie R'y Co. 52 Barb. 637, 666; Waterbury v. Merchants' etc. Express Co. 50 Barb. 157; Baker v. Backus, 32 Ill. 79. 9 Braintree Water Supply Co. v. Town of Braintree, 146 Mass. 482. § 584. Dissolution by forfeiture.—When there has been a willful misuser or non-user of the cor porate franchises, or a neglect to comply with the fundamental provisions of the contract between the corporation and the State, the latter may institute proceedings to forfeit and vacate the charter of the corporation. But it is not every failure to perform the duties imposed upon a corporation that will work a forfeiture of its franchise. There must be some plain abuse of power, by which the corporation fails to fulfill the design and purpose of its organization, and the acts of misuser or non-user must relate to matters which are of the essence of the contract between the State and the corporation, and they must be willful and repeated. A single act of willful non feasance may be a ground of forfeiture, but an isolated instance of non-feasance, not willfully committed nor productive of mischievous consequences, is not sufficient." The willful acts of corporate officers are imputed to the corporation,* unless they act against the instructions of the directors. The same principles involved in determining the forfeiture of grants to individuals for non-performance of conditions are applied to the forfeiture of grants to a corporation. A reasonable and substantial performance of the conditions is all that is necessary to defeat a claim of forfeiture. It is not necessary for the State to show that the corporation was actuated by bad motives in failing to perform a condition. A corporation cannot by subsequent good behavior make amends for past delinquency. The franchises themselves are not destroyed by a decree of forfeiture, but remain in the State, and may be again conferred upon a similar corporation,1o When a cause of forfeiture has been established, the court cannot refuse to give judgment simply because it would injuriously 1 People v. Rensselaer Ins. Co. 33 Barb. 337; People v. Kingston etc. 2 Wood's Railway Law, 1711, citing Harris v. Mississippi Valley etc. R. R. Co. 51 Miss. 602; State v. Pawtuxet etc. Co. 8 R. I. 182, 521; 94 Am. Dec. 123. 3 Wood's Railway Law, 1711. 4 Ward v. Sea Ins. Co. 7 Paige, 294; Bank Commissioners v. Bank of Buffalo, 6 Paige, 497; Life etc. Ins. Co. v. Mechanics etc. Ins. Co. 7 Wend. 31. 5 Wood's Railway Law, 1713, 1714, 6 People v. Kingston etc. Co. 23 Wend. 193; 35 Am. Dec. 551; AttorneyGeneral v. Petersburgh etc. R. R. Co. 6 Ired. 456; Lombard v. Stearns, 4 Cush. 60; State v. Royalton etc. Co. 11 Vt. 431. 7 Wood's Railway Law, 1714, citing Thompson v. People, 33 Wend. 537; People v. Kingston etc. Co. 23 Wend. 193; 35 Am. Dec. 551. And see Commonwealth v. Allegheny Bridge Co. 20 Pa. St. 185. 8 People v. Kingston etc. Co. 23 Wend. 193; 35 Am. Dec. 551. 9 People v. Hillsdale etc. Co. 23 Wend. 254; Commonwealth v. Turnpike Co. 5 Cush. 509. 10 State Bank v. State, 1 Blackf. 267; 12 Am. Dec. 234 11 Wood's Railway Law, 1715, citing State v. Pennsylvania etc. Canal Co. 23 Ohio St. 121. 12 People v. Stanford, 77 Cal. 360. 3 2 § 585. Grounds of forfeiture.-Failing to comply with the provisions of the incorporating statute, or charter,' failing to perform within a reasonable time the express or implied conditions upon which the franchises were granted, assuming privileges not conferred by the charter, constructing and operating a line with other termini than those specified in its charter and connecting with a foreign road in violation of law, keeping the principal office out of the State contrary to the implication of a statute, or even in the absence of any statute on the subject, will constitute grounds for forfeiture. 5 H |