The opinion
Breese, J. The question on this record arises on the plea by defendant, in the court below, of nul tiel corporation,. and found for him.
As a general principle, it is sufficient, in order to prove the existence of a corporation, to produce the charter, and then prove acts done under and in conformity with the charter. Utica Ins. Co. v. Tilman, 1 Wend. R. 555; Gaines v. Bank of Miss., 7 English (Ark.) R. 769; Bank of Manchester v. Allen, 11 Verm. R. 302; 3 Wend. R. 296.
Proof that all preliminary steps were taken, and that too by written evidence, as was insisted on in this case, would produce not only great public inconvenience, but, owing to those omissions to record facts with which all public bodies are chargeable, would be impossible.
It is also a general rule, that a corporation acting as such, cannot be questioned collaterally, on the ground that it has not complied with its charter. State v. Carr, 5 N. H. R. 367.
It seems there were two efforts made to incorporate the town of Mendota—the first on the 31st Oct., 1854, and again on the 20th of June, 1855. It is objected against the regularity and legality of the last election, and which is the only objection, that it does not appear that the persons named as having been elected trustees, were in fact elected, and if they were, that it also appears that three of the five were ineligible. Gallidav, by not being a resident within the limits of the corporation, and Lamb and Johnson, by not being freeholders, both of which were necessary qualifications.
The record also shows that Galliday resigned, and the rest, being a majority, elected one Wells in his place, who was qualified and took his seat as trustee; .after this, Lamb and Johnson resigned, and their places were filled by the board by the election of Gilman and Hastings in pursuance of the charter, and these persons, with Adams and Bly, first duly elected, composed the board, at the time of the passage of the ordinance under which the defendant was prosecuted.
It is insisted, that by the election of three disqualified persons, the corporation was dissolved.
That certainly cannot be the rule, for as it did not appear they were not qualified until after the election, such an occurrence can be no more fatal than the election at any subsequent period of a disqualified person; and no one will say that such an election would ipso facto dissolve a corporation, non constat but they were qualified when elected; and if not, the fact can only be inquired into by the people’s writ of Quo warranto. They cannot be attacked collaterally in this manner. The People v. Watkins, 19 Ill. R. 117.
The judgment of the court below is reversed and the cause remanded.
Judgment reversed.