arose, or the duty was enjoined, or the beginning of the suit, and not to the time of the passage of the statute.

While it has been said in some kinds of cases that a positive declaration of forfeiture made by a statute does not require a suit by the state to accomplish that result,29 yet the real meaning of the above section of the code is not to declare a forfeiture eo instanti but to declare it upon the institution and judgment of such a suit.

Equity has no power to dissolve a corporation; such power, if it exists, arises by virtue of statutory authority, and the power of the courts does not go beyond the express provisions of the statute, either as to the conditions under which it may be invoked, or the extent of the judgment which may be rendered.3

NO RECEIVER APPOINTED

80

See this subject under Code of Civil Procedure, sections 531, 564, and 565, post.

WHO DEFENDANTS

If the suit is to annul franchises granted to a corporation, or to prevent it usurping franchises not belonging to it, the corporation is the only proper defendant; if it is to prevent the exercise or usurpation of a franchise to exist, the proceeding must be against the persons acting as such pretended corporation.31

29 Oakland R. Co. v. Oakland etc. Co., 45 Cal. 365, 13 Am. Rep. 181; Kaiser Land etc. Co. v. Curry, 155 Cal. 638, 649, 103 Pac. 341, and cases cited.

30 Neall v. Hill, 16 Cal. 145, 76 Am. Dec. 508, 1 Morr. Min. Rep. 80; French Bank Case, 53 Cal. 495, 551; State Investment Co. v. Superior Court, 101 Cal. 135, 35 Pac. 549.

81 People v. Stanford, 77 Cal. 360, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. 693; People v. Reclamation District, 117 Cal. 114, 117, 48 Pac. 1016; People v. Dashaway Ass'n, 84 Cal. 114, 144, 12 L. R. A. 117, 24 Pac. 277.

But it was said an action for the usurpation of a municipal franchise may be brought against the defendant in its assumed corporate name without joining the trustees.32 It was said in effect that the liability of the trustees is for usurpation of office and not of a franchise, but, as we have seen, this proceeding can not be resorted to to try the title to the office of director of a corporation, because the latter is not a public office. It seems to us that the difficulty is more easily solved by considering the organization (for it is an organization) as a de facto corporation, the officers of the organization, the pretended corporation, being the agents, the representatives of all persons interested. In proceedings against a de facto corporation to deprive it of its charter, the corporation is a necessary defendant, and in proceedings to test the validity of a municipal corporation the municipality, real or pretended, must be a defendant. If bondholders of an irrigation district are permitted to intervene in a suit by the state in quo warranto proceedings charging the district with usurping the powers of such a district and to have its powers and franchises declared forfeited, they may defend to the same extent as the district could.35

33

ORGANIZATION, SUBSTANTIAL COMPLIANCE WITH LAW

NECESSARY

In a proceeding by the state to oust the defendants from exercising the franchise of being a corporation, an instance of failure of a substantial compliance with the law concerning its organization was where the requisite number of persons required by law did not

32 People v. Riverside, 66 Cal. 288, 5 Pac. 350.

33 People v. Montecito etc. Co., 97 Cal. 276, 33 Am. St. Rep. 172, 32 Pac. 236; People v. Flint, 64 Cal. 49, 28 Pac. 495.

34 People v. Gunn, 85 Cal. 238, 24 Pac. 718.

35 People v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399, 773.

sign the Articles of Incorporation.86 Other instances have not come before the courts, but can be readily discerned.

TAKING TOO EXTENSIVE POWERS IN ARTICLES

Where a corporation was formed for the purpose of manufacturing lumber, and the Articles also contained the taking of power "to buy, lease, sell, mortgage, and otherwise deal in railroads, tramways, etc.," it was held that the Articles did not authorize the corporation to buy, lease, or operate a railway for traffic nor give it the right of eminent domain to acquire rights of way, but, subject to these limitations, as such appliances are frequently necessary for such corporations, that quo warranto will not lie to oust it from exercising such rights.37

STATUTE OF LIMITATIONS

The statute of limitations (Code of Civil Procedure, section 345) may be pleaded in some possible cases of misuse or non-use of powers, but not as to the franchise to be a corporation if the usurpation continues, for the continuous use is a renewed usurpation each day.38

86 People v. Golden Gate Lodge, 128 Cal. 257, 60 Pac. 865; People v. Montecito etc. Co., 97 Cal. 276, 33 Am. St. Rep. 172, 32 Pac. 236; Wall v. Mines, 130 Cal. 27, 40, 62 Pac. 386.

37 People v. Mount Shasta etc. Co., 107 Cal. 256, 40 Pac. 391.

38 People v. Stanford, 77 Cal. 360-377, 2 L. R. A. 92, 18 Pac. 85,

19 Pac. 693.

CHAPTER XXIII

VOLUNTARY DISSOLUTION

A voluntary dissolution of a corporation can not be accomplished by the concurrent action of the stockholders and directors, as it may be in many states; that power is lodged in the superior court.

The proceeding is cumbersome, tedious, and expensive, especially to small corporations which comprise the great majority of those desiring to voluntarily dissolve. And, under the decisions, the court proceedings afford no additional protection of substantial value to creditors.

The statutes on this subject are contained in sections 1227 to 1234 of the Code of Civil Procedure, copy of which is as follows:

§ 1227. A corporation may be dissolved by the superior court of the county where its principal place of business is situated, upon its voluntary application for that purpose. (Amended April 16, 1880; amendts. 1880, p. 109.)

§ 1228. The application must be in writing, and must set forth:

1. That at a meeting of the stockholders or members, called for that purpose, the dissolution of the corporation was resolved upon by a vote of two thirds of the members or of the holders of two thirds of the subscribed capital stock;

2. That all claims and demands against the corporation have been satisfied and discharged. (Amended March 16, 1907; stats. 1907, p. 318.)

§ 1229. The application must be signed by a majority of the board of trustees, directors, or other officers

having the management of the affairs of the corporation, and must be verified in the same manner as a complaint in a civil action. (Enacted March 11, 1872.)

§ 1230. Upon the filing of the application, the clerk must give notice of the same for such time as the court may order, but not less than thirty nor more than fifty days, by publication in some newspaper published in the county; or if there be no newspaper published therein, then by notices posted in three of the principal public places in the county. (Amended March 16, 1907; stats. 1907, p. 318.)

§ 1231. At any time before the expiration of the time of publication, any person may file his objections to the application. (Enacted March 11, 1872.)

§ 1232. After the time of publication has expired, the court may, upon five days' notice to the persons who have filed objections, or without further notice, if no objections have been filed, proceed to hear and determine the application, and if all the statements therein made are shown to be true, must declare the corporation dissolved. A certified copy of the decree and order of the court dissolving the corporation must be filed in the office of the secretary of state. (Amended March 20, 1907; stats. 1907, p. 744.)

§ 1233. The application, notices and proof of publication, objections (if there be any), and declaration of dissolution, constitute the judgment roll; and from the judgment an appeal may be taken, as from other judgments of the superior courts. (Amended April 16, 1880; amendts. 1880, p. 109.)

§ 1234. If the applicant is a savings and loan association, or engaged in the business of receiving money on deposit, and there is any unclaimed deposit or dividend in its hands belonging to a person whose whereabouts are unknown to the trustees, directors, or other officers presenting the application, the application must set forth the name of the person making such deposit, or entitled to such dividend, the time when such deposit