tributed the 108 shares among the complainants and others, by giving one share to each. In a case so glaring, I can not believe my learned and now venerable predecessor would have forgotton or have hesitated to apply this principle, if he had not been satisfied from the course of legislation which had been adopted in relation to the distribution of the stocks of incorporated companies, that there was something which took the case of commissioners and trustees for the distribution of such stocks out of the operation of the general rule. Whether he was right in his construction of the law as to the powers of the commissioners in such a case, it is useless now to inquire, as his decision has been received and acted on as law ever since that time. And the numerous prohibitions contained in subsequent acts of incorporations, restricting the commissioners as to the number of shares they shall be permitted to distribute to themselves, but without giving them in terms the power to take any, show the understanding of the legislature that such was the established law.

I must, therefore, conclude, from these circumstances, and also from the fact, of public notoriety, that commissioners have always been in the habit of apportioning a part of the stock to themselves; that the legislature did not intend the commissioners in this case should be excluded from a participation in the stock of the company. As to the amount taken by them, they have restricted themselves far below the smallest maximum which has ever been adopted by the iegislature in a similar case. I can not, therefore, say they have abused the right of appropriating a portion of the capital stock of the company to themselves.

Injunction denied.

Note. See particularly: 1839, Crocker v. Crane, 21 Wend. (N. Y.) 211, 34 Am. Dec. 228; Beach, $519; Cook, § 57; Elliott, § 363; Morawetz, §§ 64-68; Taylor, § 91; 1 Thompson, §§ 1204–1250; 2 Thompson, §§ 1368, 1540; 5 Thompson, §§ 5908, 6570.

Authority and functions of commissioners.-1. Their functions are of a public character, and action will be compelled by mandamus. 1833, Walker v. Devereaux, 4 Paige Ch. (N. Y.) 229, supra; 1851, In re, White River Bank, 23 Vt. 478.

2. As to those dealing with them, their authority is similar to that of an agent with a special power of attorney. 1871, Nippenose Mfg. Co. v. Stadon, 68 Pa. St. 256.

3. As to the corporation, and subscribers, they are trustees, subject to control by courts of equity. 1831, Attorney-General v. Stevens, 1 N. J. Eq. (Saxt.) 369, 22 Am. Dec. 526.

4. Their power is usually of a discretionary character. 1858, Thomas v. Citizens' Pass. R. Co., 15 Leg. Int. (Pa.) 189; 1858, Brower v. Pass. R. Co., 3 Phil. (Pa.) 161; generally so, in apportioning or allotting excessive subscriptions. 1814, Haight v. Day, 1 Johns. Ch. (N. Y.) 18; 1832, Clarke v. Brooklyn Bank, 1 Edw. Ch. (N. Y.) 361; but sometimes it is not so: 1850, Van Dyke v. Stout, 8 N. J. Eq. (4 Halst.) 333; 1856, Buffalo & N. Y. C. R. v. Dudley, 14 N. Y. (4 Kern.) 336. When ministerial it can be delegated: 1848, Lohman v. N. Y. & E. R., 2 Sandf. (N. Y.) 39; 1872, Saugatuck Bridge Co. v. Westport, 39 Conn. 337, but see 1861, Shurtz v. Schoolcraft, etc., R., 9 Mich. 269, contra.

5. They usually act as a board, and a majority controls. 1839, Crocker v.

Crane, 21 Wend. (N. Y.) 211, 34 Am. Dec. 228; 1856, Penobscot R. Co. v. White, 41 Maine 512, 66 Am. Dec. 257. Acts of de facto boards, however, making allotment to themselves only, have been held to be void. 1895, Shellenberger v. Patterson, 168 Pa. St. 30, 31 Atl. 943.

6. Their authority continues till the subscription is completed. 1836, Lallande v. Louisiana State Ins. Co., 9 La. 326. But ceases as soon as the subscription is completed and organization takes place. 1854, Smith v. Bangs, 15 Ill. 399; 1858, Ellison v. Mobile & O. R. Co., 36 Miss. 572; 1858, James v. C., H. & D. R. Co., 2 Disney (Ohio) 261.

7. In some states it is held the commissioners have exclusive authority to receive subscriptions. 1811, Essex Turnpike Corp. v. Collins, 8 Mass. 292; 1861, Shurtz v. Schoolcraft & T. R. Co., 9 Mich., 269; 1875, Parker v. Northern Cent. M. R. Co., 33 Mich 23. But in other states it is held that any one may take a subscription, provided it is accepted by the corporation. 1857, Northeastern R. Co. v. Rodrigues, 10 Rich. Law (S. C.) 278; 1857, Walker v. Mobile & O. R. Co., 34 Miss. 245; 1876, Scarlett v. Academy of Music, etc., 46 Md. 132.

Sec. 80. Incorporators under general statutes.

NICKUM v. BURCKHARDT.1

1897. IN THE SUPREME COURT OF OREGON. 30 Oregon Reports 464-477, 60 Am. St. R. 822, 47 Pac. R. 888.

Opinion by Mr. Justice WOLVERTON.

This is an action to recover for assessments levied upon unpaid capital stock of a private corporation. About June 18, 1893, some thirteen persons, among whom were Guy Posson, who signed for two shares; J. E. Juston, for four; F. C. Barnes, for ten; and H. Pease, for three-subscribed the following agreement, each placing opposite his name the number of shares presumably intended to be taken: "We, the undersigned, each in consideration of the promise of the other, agree to subscribe for and take the number of shares of the capital stock set opposite our respective names of a company to be incorporated for the purpose of operating a fertilizer, feeding and fattening stock and poultry, and if obtainable, collecting and disposing of swill, and other purposes of like nature; said company to be incorporated in accordance with the laws of the state of Oregon, with a capital stock of $15,000, divided into 150 shares of the value of $100 each." There were seventy-eight shares subscribed for upon this paper, representing $7,800. On the 7th day of October, 1893, three of the subscribers executed, duly acknowledged, and caused to be filed and recorded in the proper offices, articles of incorporation, in1 Opinion on rehearing upon the point as to estoppel omitted.

corporating the Oregon Fertilizing Company specifying the object and business thereof to be "to transport wood, produce and garbage and to cremate such garbage, or to use the same for feed or fertilizing purposes." A little later, all the subscribers to said instrument, except the four above named, signed with others the following writing, which is contained in a minute book kept for the purpose of recording the proceedings of the corporation to wit: We, the undersigned, hereby subscribe for the number of shares of capital stock of the Oregon Fertilizing Company set opposite our respective names, and agree to pay for the same at such time or times as may be ordered by the board of directors hereafter to be elected." Only sixty-nine shares of the capital stock were subscribed for upon this latter instrument. Subsequently all the subscribers to this instrument, together with Posson and Juston, signed an agreement to hold the first meeting of the stockholders on October 14, 1893, waiving the thirty days' notice required by law, and in pursuance thereof the meeting was held, all said signers being present, either in person or by proxy, but no others, and participated in the election of directors and other business. The corporators having certified to the result of the election, the directors elected took the oath of office, and at once organized by electing the officers of the board. To abate the action, the defendants plead that the plaintiff company is not an incorporation.

It was urged at the hearing that the defendants ought to be estopped from alleging that the Oregon Fertilizing Company is not a corporation duly incorporated and organized in all respects as contemplated by law, inasmuch as they are subscribers or purchasers of stock subsequent to the alleged completed organization of the company; that having dealt with the company in its corporate capacity, and having entered into contractual relations with it, they have recognized its existence as a body corporate, and that now, when sued upon their obligation to it as such a body, they should not be permitted to deny its legal existence. The doctrine here contended for is undoubtedly well grounded in the law, but it can not be invoked in this case because not pleaded. The opportunity was afforded for setting up the supposed estoppel in the reply, but it was not done, and it is now too late to assert it. It is said that "if a party who has an opportunity to plead an estoppel upon which he relies fails to do so, but goes to issue on the fact, he thereby waives the estoppel, puts the matter at large, and the jury may disregard the estoppel, and are at liberty to find the truth." Note to Tyler v. Hall, 106 Mo. 313, 27 Am. St. Rep. 337-346, 15 S. W. 319. To the same effect are Bruce v. Phoenix Ins. Co., 24 Ore. 486, 34 Pac. 16; and Bays v. Trulson, 25 Ore. 109, 46 Am. & Eng. Corp. Cas. 386, 35 Pac. 26.

This question disposed of, we come to another, more complex in its nature, and that is whether there has been an organization of the plaintiff corporation under and in pursuance of the general statutes providing therefor. The regularity of the execution and filing of the articles of incorporation is conceded. The persons subscribing the

articles are known as the incorporators, and their powers and duties are purely statutory. They may open books and receive subscriptions to the capital stock; "they shall give notice to the subscribers to meet" at such time and place as they may designate for the purpose of electing directors; they shall act as inspectors at the first meeting for that purpose, certify who are elected, and appoint the time and place of their first meeting. This enumeration comprises the substance of their powers (See section 3222, Hill's Code). These are all acts necessary to and in furtherance of the completion of the organization. The organization is completed only when directors have been elected, and they have elected a president and secretary, which it is contemplated they shall do at their first meeting. From the time of the first meeting of the directors, that is to say, from the time of the organization of the board, "the powers vested in the corporation are exercised by them, or by their officers or agents under their direction" (Hill's Code, sec. 3225), thus relieving the incorporators of further duty or power in the premises, or, rather, their functions then cease, because their duties have been fulfilled and their powers executed. From the date of its completed organization the incorporation may begin the prosecution of its enterprise or business. It may then sue and be sued, contract and be contracted with, and exercise any of the other statutory powers incident to its organization and the enterprise, business, pursuit or occupation 'adopted. The corporation may elect its board of directors when one-half of the capital stock has been subscribed. Hill's Code, $ 3222; Fairview R. Co. v. Spillman, 23 Ore. 587, 32 Pac. 688. And one question here is, whether one-half of the capital stock had been subscribed when the board was elected. It seems to be supposed that in order to constitute a person a subscriber to the capital stock of a corporation he must have subscribed to the stock books of the concern after its articles of incorporation have been perfected and filed, and Coyote Mining Co. v. Ruble, 8 Or. 284, is cited as authority. Boise, J., at page 294, says, in effect, that to put a person in the position of a subscriber to the capital stock it must be shown by the stock book signed by him, or evidence equivalent to such signing. This would seem to support the proposition, but at another place (page 298) he says: "It is necessary for the corporation to prove the subscription by producing the supscription signed by Ruble, either by himself or by another for him with his authority, or by some acts of his which are equivalent to a subscription." So that the case does not decide either that the primary subscription must be made upon the stock book, or that it shall have been made subsequent to the execution of the articles of incorporation. In a late case (Balfour v. Baker City Gas Co., 27 Ore. 307, 41 Pac. 165), Bean, C. J., speaking for this court, says: "From an extended examination of the authorities we take the law to be that when the proposed corporation is formed as contemplated in the preliminary subscription, and within a reasonable time thereafter, the subscription, unless revoked in the manner authorized by law, becomes irrevocable,

the subscriber becomes a shareholder, and liable as such without any further act on his part." And this seems to be so, although the statute may provide for the opening of stock books by designated persons after the articles are filed. Balfour v. Baker City Gas Co., 27 Ore. 307, 41 Pac. 165; Thompson on Corporations, §§ 1152, 1166; Buffalo R. Co. v. Gifford, 87 N. Y. 294. Nor is the distinction taken in some of the cases between a present subscription and an agreement to subscribe to the stock of a corporation thereafter to be created thought to be sound. I Cook on Stocks and Stockholders, § 75; Knox against Childersburg Land Co., 86 Ala. 180-184, 5 South. 578; Athol Music Hall Co. v. Carey, 116 Mass. 471.

Now, it appears that by the preliminary subscription seventy-eight shares of the capital stock were signed for, three more than was necessary for the completion of the organization by the election of directors. Four of the individuals signing this paper, representing nineteen shares, did not sign the later agreement, to which sixty-nine shares only were subscribed. All those subscribing the latter paper, together with Guy Posson and J. E. Juston, who signed the preliminary subscription, signed the consent agreement, for holding the first meeting, and participated therein, and Juston was elected a director. So it will be seen that if the two shares of Posson and the four of Juston are added to the sixty-nine shares signed to the second paper, one-half of the capital stock was represented at such meeting. But the question arises, Were they subscribers to the capital stock? We think that, having signed the preliminary subscription and the consent agreement for the first meeting, and having participated therein, they became bound in that capacity, and must be so considered. They certainly are estopped by their acts from denying that they are subscribers, and, this being so, the law requiring a subscription of one-half of the capital stock before organization was substantially complied with.

Incidental to this question, it is argued that the purposes designated in the articles of incorporation do not correspond with those set forth in the preliminary subscription, and, therefore, that Posson and Juston can not be held to be subscribers. We presume that ordinarily a material departure in this respect will avoid the original agreement, but in this case the persons named have construed the purposes to be one and the same by participation in the organization under the articles of incorporation, or, rather, to speak more concisely, they have assented to the departure, if such it may be termed. Knox v. Childersburg Land Co., 86 Ala. 180, 5 So. Rep. 578.

Again it is urged that if the primary subscription is sufficient to bind the subscribers to the capital stock of the concern, then Barnes and Pease not being present, and having no notice of the first meeting, and not having waived the same by writing or otherwise, the election of directors was irregular and void. We are not to be understood as passing upon the sufficiency of this paper within itself, but that, considering the subscription thereto of Posson and Juston,