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prescribe. The death of a shareholder does not terminate the trust or give his legal representative a right to an accounting or to take any action in the courts or otherwise against the shareholders, but entitles the legal representative of the deceased to receive a new certificate in place of the certificate held by the deceased. No assessments can be made upon the shareholders, and the instrument contains a stipulation that they are exempt from personal liability on account of contracts entered into or torts committed by the trustees. The shareholders meet annually, and they have also such special meetings as may be called by the trustees. The shareholders at such meetings fill vacancies in the number of trustees, and may depose any or all of the trustees and elect others in their place. The trustees are empowered to execute instruments which are conclusive upon the associates. The trust shall continue for twenty years after the death of the last surviving original subscriber; provided that a majority in interest of the total number of shares may direct a sale of the property at any time, and upon such sale and distribution among the shareholders in proportion to their interest, the trust shall be terminated. The trustees are vested with full power of leasing and letting, and have exclusive management of the property, and can borrow money for temporary exigencies, which shall bind the assets of the trust but not the shareholders individually. They also have the power to mortgage the property for a sum not exceeding $100,000 for the purpose of making improvements or to extinguish liens; and they determine the amount of net income and declare such dividends as in their opinion may be judicious, and invest in such manner as they see fit any moneys which they may have on hand.
This association possesses all of the essential elements of a common-law joint stock company, which is defined to be
“An association of persons for the purpose of business, having a capital stock divided into shares, and governed by articles of association which prescribe its objects, organization, and procedure, and the rights and liabilities of the
members, except that the articles can not release the members from their liability as partners to the creditors of the company;" and is otherwise definei as
"An association of individuals possessing a common capital divided into shares, of which each member possesses one or more. These shares represent the interests of the members, and are transferable by the owners without the consent of the other members or the creditors of the association." (2 Cook on Corporations, 504.)
In Spotswood v. Morris (12 Idaho, 360), it was held that any corporation, association, or joint stock company may be formed by individuals for the purchase of a single tract of real estate, the title to which may be taken in the
There can be no doubt that this concern is an association organized for profit and having a capital stock represented by shares. But it is earnestly insisted on behalf of these companies that the statutory requirements that a company, in order to be amenable to the tax, shall be “ organized under the laws of the United States or of any State or Territory of the United States," has reference to statutory laws which prescribe specifically a method or plan of organization, and which confer franchises upon the body when organized; in other words, that the joint stock companies and associations contemplated by the act are only such as have some form of corporate existence. If this were true, then the phrase "joint stock company or association" would be surplusage, but I am not willing to give assent to such a construction.
That this company has an organization goes without saying. Its trustees compose a board of managers, upon whom rest the same duties as those imposed upon the board of directors of a corporation. The trustees may be discharged and their successors elected in the same way or in a way similar to that by which the directors of a corporation may be discharged and their successors elected. A change of trustees affects the business of the concern no more than the change of directors of a corporation. Trustees come and go, but the title to the property remains
with those having charge of its affairs, and its business is still conducted by them precisely the same as the business affairs of a corporation continue with it after a change of directors. The same conditions exist as to the shareholders. The shares are transferable by assignment in like manner as the shares of a corporation. Such assignment has no effect whatever on the business of the company, and the shareholders possess only the rights of drawing dividends and participating indirectly by vote in the management of the concern, the same as are enjoyed by the shareholders of a corporation. Under its organization, the period of its existence is fixed just as is that of a corporation by statute, and the death of its trustees or shareholders does not terminate or affect its existence any more than does the death of the directors or shareholders of a corporation; and in the period fixed for its existence by the articles of association, it can be dissolved only by vote of its shareholders, which power is likewise possessed by the shareholders of a corporation. It is true that its shareholders can not, by contract, free themselves from personal liability, but in Liverpool Insurance Co. v. Massachusetts (77 U. S. 566, 575), it was held that the fact that the shareholders of a joint stock company organized under an act of Parliament, which expressly declared that such company should not constitute a corporation, were individually liable for its debts, did not relieve it from taxation under a statute which imposed a tax upon "each fire, marine, and fire and marine insurance company incorporated or associated under the laws of any government or State other than one of the United States."
In short, the organization of this company is just as compact, and, in fact, is practically the same, as that of an ordinary corporation organized under a general or special statute.
Nor can it be denied that its organization is sanctioned by the laws of Massachusetts and that it obtains its vitality from those laws, just as much as a corporation organized under a special act of the legislature of that State derives its vitality from such act. Such an association, therefore, is based on the laws of Massachusetts, and, in fact, is organized thereunder.
By the expression “laws of a State," as used in statutes, reference may be had to the common law, as well as the statutory law of such State. (Lycoming Fire Insurance Co. v. Medad Wright & Son, 60 Vt. 515; State v. Dyer, 67 Vt. 690, 697.)
I am of the opinion, therefore, that these various business organizations are "joint stock companies or associations organized for profit and having a capital stock represented by shares," organized under the laws of the State of Massachusetts, within the meaning of the exise law enacted by section 38 of the act of August 5, 1909, and that they are amenable to the tax created thereby. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE TREASURY.
ISTHMIAN CANAL COMMISSION-AWARD OF CONTRACT FOR
A contract for furnishing oils to the Isthmian Canal Commission may be
awarded to a bidder who either owns the oils or, at the time the agreement is made, has a valid contract to have the oils supplied; and the contract is not to be withheld because the oils are to be obtained from a company prohibited from selling to the Government providing said company has no interest in the award.
Attorney-General declines to express an opinion upon hypothetical questions, nor will he enter into the consideration of disputed questions of evidence.
DEPARTMENT OF JUSTICE,
April 1, 1910. Sir: I have the honor to acknowledge the receipt of your letter of the 24th ultimo, in which you refer to my communication of March 23 (ante, p. 231), relative to the bid of Messrs. Motley, Green & Co. for a contract to supply oil, etc.; and you point out that, under my opinion, there may be a distinction between two contingencies under either of which a question as to whether or not the bid of Messrs. Motley, Green & Co. shall be accepted may arise, and you ask whether under the second contingency which you put, you would, under my opinion, be authorized to accept
their bid. This second case you express in the following language:
“They” (Motley, Green & Co.) “may have made a contract by which they would have the right to demand the deliveries, but it may amount to only an option. In short, they may have made an agreement by which, if the government contract is awarded to them, they will have the right to demand from the Galena Oil Company the oil to supply it; but if the government contract should not be awarded to them, they would be under no obligation to take the oil.”
My opinion was predicated upon the statement of facts set forth in the letter of Messrs. Motley, Green & Co. addressed to you under date of March 5, viz:
“We have a valid contract with the Galena Signal Oil Company for the supply of these oils, and are in a position to call upon them for the same at any time. They have no interest in our contract in any way whatever."
" It is well settled that the Attorney-General will not express an opinion upon hypothetical questions (21 Op. 506; 22 Op. 77; 24 Op. 118; 25 Op. 94); nor will he enter into the consideration of disputed questions of evidence (17 Op. 172; 18 Op. 487; 19 Op. 672; 20 Op. 742; 22 Op. 156). Therefore, all that I can properly say is that, assuming that the representations made by Messrs. Motley, Green & Co. are correct, and that they either own the oils which they propose to sell to the Government, or that at the time of making the agreement they shall have a valid contract for the supply of the oils, the fact that they may have purchased or agreed to purchase them from one of the companies comprehended in the decree of the court adjudicating certain companies to be members of an unlawful combination and to be carrying on business in violation of law. would not require you to reject their bid. I have the honor to be,
Very respectfully yours,
GEORGE W. WICKERSHAM.
The SECRETARY OF WAR.