Page:Federal Reporter, 1st Series, Volume 5.djvu/421

 IN RB SOUTH MOUNTAIN CONSOLIDATED MINING 00. 409 �those cases where such an action can be maintained ; that is, to those cases where stock has been subscribed for, and an obligation assumed to take and pay for it. In the case of railroad, telegraph, and wagon-road associations, the articles of incorporation are required to state that at least 10 per cent, of the capital stock subscribed has been paid in, and no such corporation can be organized until subscriptions to its capital stock have been obtained in a specified amount for eaeh mile of the contemplated work, and 10 per cent, of this amount must be paid in before the articles are filed. Sec- tions 291, 292, 293, 294. �By section 290, the articles of incorporation must set fortb — "First, * * *; sixtk, the amount of the capital stock and the number of shares into which it is divided; seventh, if there is capital stock, the amount actually subscribed, and by whom." �These provisions are retained in the latest amendments to the Code, 1880. The only meaning I can attach to them is that the legislature contemplated two classes of corporations, in both of which the amount of the so-called capital stock, and the number of shares into which it is divided, are required to be stated ; but in only one of these classes the stock was sup- posed to be subscribed for, and an obligation incurred to take and pay for it. This latter class includes, as we bave seen, railroad, wagon-road, and telegraph companies, and banking, Insurance, and other associations based on capital paid in or agreed to be paid in. It is to this class that the clause giving the directors the right to elect "to proceed by action to recover by action the amount of the assessment" must, in my judg- ment, be deemed to refer. �2. The argument of the leamed counsel for the creditors admitted that the liability contended for was limited to an amount equal to the par value of the stock held by the stock- holders, and that it could only be enforced for the benefit of «reditors. But if the construction of section 349, contended for, be Sound, I fail to perceive on what grounds this limita- tion or restriction can be imposed. ����