
    The Fifth Baptist Church of Washington, D. C., by its Trustees, vs. The Baltimore & Potomac Railroad Company. Same vs. Same.
    Decided November 1, 1886.
    The Chief Justice and Justices Cox and Merrick sitting.
    Law.
    Nos. 51,760 and 24,529.
    1. A verdict in damages will not be set aside as excessive where there is nothing before the court to show in what respect it is so.
    2. The neglect of the trustees of a religious society to make the proper record of its certificate of incorporation as provided by section 585, R. S. D. 0., does not preclude the society from proving its corporate existence by evidence of acts of user.
    Motions by defendant for new trials in two actions by the same plaintiff' for a continuing nuisance.
    Statement of the Case.
    The plaintiff, a religious corporation, has its place of worship on Virginia avenue in the city of Washington. After being located there for some time the defendant, a railroad company, erected its engine and repair shops contiguous to the church. In the course of time an action was brought in this court against it by the church to recover damages as for a nuisance. The case was tried and a verdict of i|4,500 rendered. See 2 Mackey, 458.
    It was then carried by writ of error to the Supreme Court of the United States, 108 U. S., 317, where the court, affirming the judgment, declared the grievance complained of “a nuisance in every sense of the term.”
    In the language of the court: “ The engine house and repair shop of the railroad company, as they were used, rendered it impossible for the plaintiff to occupy its building with any comfort as a place of public worship. The hammering in the shop, the rumbling of the engines passing in and out of the engine house, the blowing off of steam, * * * and the smoke from the chimneys, with its cinders, dust and offensive odors, created a constant disturbance of the religious exercises of the church. The noise was often so great that the voice of the pastor while preaching conlcl not be heard.. The chimneys of the engine house being lower than the windows of the church, smoke and cinders sometimes entered the latter in such quantities as to cover the seats of the church with soot, and soil the garments of the worshippers. Disagreeable odors, added to the noise, smoke and cinders, rendered the place not only uncomfortable hut almost unendurable as a place of worship. As a consequence, the congregation decreased in numbers, and the Sunday school was less numerously attended than previously. Plainly, the engine house and repair shop, as-they were used by the railroad company, were a nuisance in every sense of the term. They interfered with the enjoyment of property which was acquired by the plaintiff long before they were built, aud was held as a place for religious exercises, for prayer and worship.”
    The judgment in that case was then satisfied by the defendant. Tbe plaintiff, however, claiming that instead of there being any abatement of the nuisance it had materially increased, brought a second action three years after the institution of the first, for the continuance of the alleged nuisance ; and again, three years after this second action, a third was brought because of the same grievance.
    The second action was tried, and a verdict for $6,000 obtained, b®t on appeal to the General Term (see 4 Mackey, 43,) the judgment was reversed for want of sufficient evidence of the corporate existence of the plaintiff, the court holding that “under section 535 of the Revised Statutes of the District of Columbia, a recorded certificate of incorporation of a religious society is not evidence of a corporate organization, unless it states the date of the election or appointment of the trustees, th.Q length of time for which the trustees were elected or appointed, and is verified by am affidavit by one of the person s making the certificate. W ithout these particulars it is not the paper which the law provides for as sufficient proof of corporate organization j for if a paper he placed on record which is neither directed nor authorized to be recorded* the record is no evidence of’ the existence or contents of such original paper, and still less of any facts set forth, recited or declared in such paper.”
    The case then coming before the circuit court for a new-trial, the plaintiff undertook to establish its corporate existence de facto by evidence of a colorable organization and proof of user, the evidence offered being as follows:
    “1. Parol evidence that a special meeting of the former church, called the ‘Island Baptist Church/ was held in 1871, which resolved to become incorporated and elected trustees, the term of each being fixed at three years.
    “2. The original certificate which had been recorded in the office of the recorder of deeds September 5, 1871, and again on May 1, 1885, and also a certified copy thereof.
    “3. Three deeds of trust made by C. C. Meador et al., ‘trustees of the Fifth Baptist Church of Washington City, D. C./ and releases of two of said deeds, and the record in the original law case, wherein a judgment was rendered against defendant and by it paid.”
    This evidence being admitted, a verdict of $6,000 was rendered.
    In the meantime the third action had been reached and a verdict of $7,000 obtained.
    These two actions were now brought to the General Term and heard together on the following two principal grounds of appeal:
    1. Want of evidence of corporate existence.
    2. Excessive damages.
    J. J. Darlington and Morris & Hamilton for plaintiff:
    On the question of excessive damages, cited the opinion of the Supreme Court in the first case, 108 U. S., 317, and 1 Graham and W. New Trials, 452, 410, et seq., and also contended that there were several elements of damage in these cases not presented in the list.
    On the question of incorporation, contended:
    1. That the certificate of incorporation is not made by the statute a prerequisite to the right to sue or other corporate powers, but is directory merely.
    
      ■ 2. That where the statute, though requiring an act to be done, does not declare it to be a necessary prerequisite or essential to corporate existence, the provision is directory, and the omission is exclusively a matter between the corporation and the State.
    3. That where there has been a bona fide attempt to organize under a law under which the powers assumed might lawfully be created, followed by user of the rights claimed to be thereby conferred, at least a corporation de facto results, whose validity only the State, by a direct proceeding, can assail.
    In support of these propositions, the following cases were cited:
    Bank of Toledo vs. International Bank, 21 N. Y., 542; Ewing vs. Robeson, 15 Ind., 26 ; Heaston vs. Cincinnati, etc., R. R. Co., 16 Ind., 275 ; M. E. Church vs. Pickett, 19 N. Y., 482; U. S. Bank vs. Stearns, 15 Wend., 314; Trustees, etc.,, vs. Hills, 6 Cow., 23; Eaton vs. Aspinwall, 19 N. Y., 119 ;' Holmes vs: Gilliland, 41 Barb,, 568; Buffalo & Allegany R. R. Co. vs. Cary, 26 N. Y., 75; Mead vs. Keeler, 24 Barb., 20; Spring Yallev Water Works vs. San Francisco, 22 Cal., 434; Jones vs. Dana, 24 Barb., 395 ; Gaines vs. Bank of Miss., 12 Ark., 769 ; Rice vs. Rock Island', etc., R. R. Co., 21 111., 93; Tarbell vs: Page, 24 111., 46; Baker vs: Adm’r of Backus, 32 111., 79 ; Caryl vs. McElrath, 3 Sand., 176; Merrick vs. Reynolds, Engine, etc., C'o., 101 Mass., 381; Harrod vs. Hamer, 32 Wis., 162; Keene vs: Brady, 48 Md., 184;, Taggart vs. Western Maryland R. R. Co.,. 24 Md., 596; Whitney^s. Wyman, 101 U. S., 392; National Bank vs: Matthews, 98 U. S'., 621; Angelí & A. Corp., sec. 635; Searsburgh Turnpike Co. vs. Cutler, 6' Yt., 315; Persse &' B'. Paper Works vs. Willett, 1 Rob. Super. Ct, 131; Thompson -os; Candor, 60 111., 244; Cincinnati, etc., R. R. Co. vsDanville, etc.,. R. R. Co., 75 111., 113'; Stockton & L. G. R'. Co. vs. Stockton & O. R. R. Co., 45’ Cal., 680 ; Abbott Tr, Ev., p. 24..
    Enoch Totten for defendant..
   Mr. Chief Justice Cabtteb

delivered the opinion of the «court.

We have nothing before us to show that the damages in 'these cases were excessive. Being, therefore, without any ■guide upon that subject, we are not disposed to interfere with the verdicts. They are not so large as to shock the 'conscience of the court.

It is strenuously contended, however, that the plaintiff has not complied with the requirements of the incorporation laws, and is therefore without any corporate existence to maintain this action. It is true that no evidence is presented showing a compliance with the law requiring a recording of the certificate of incorporation. We think, however, that the delinquency of its trustees in -respect of this merely clerical requirement of the law, ought not to be visited upon the plaintiff.

It may show its corporate existence by other and proper ■evidence; and this we think it has done. We have evidence that through a period of fourteen years this congregation has been acting as a corporation; electing trustees.; building a house of worship; executing mortgages, and in many ways exercising the functions of a corporate body. With these manifestations of corporate power and user it is vain to deny the corporate existence of the plaintiff merely because its trustees failed to record a certificate of incorporation as required by law. That, as we have said, was a mere ■delinquency of the trustees in the performance of a clerical ■duty. It was an act to he done, not as contributing to the ■existence of the corporation, but demonstrative of its existence, and does not prevent it from showing by acts of user evidence of corporate organization and existence.

We affirm the judgment in both cases.  