That the right· to redeem is a statutory right given by the state does not affect the quelltion. The purchaser of the property could not be required to pay the commissions pf the clerk, since, under the statute, he was not obliged to surrender the property and the benefit of his purchase unless he received the full amount of his bid and interest thereon. The only mode, therefore, to obtain· the per cent. which the statute in express words allows on all moneys received, kept,and paid out by the clbrk was to require payment thereof by the losing party-that is, the party redeeming. In brief, the duty of <the to allow the redemption given by subject to the provision of the act the state law must of congress' fixing the limount to be paid'to the clerk on all moneys received, kept, and paid out by hini under order of court. The petition is denied.
COUNTY OF TAZEWELL 'V.
N. D. Illinois.
July 7, 1882.)
A county, as stockholder in a railroad. company, brought suit against the company. Held, on demllrrer, that where tlie bill shows a condition of things touching the control of the corporate affairs of those entrusted with their active management, as would 4ave rendered a formal application to the board of directors to bring the suit an idle ceremony, a case is presented requiring the defendant to answer. '. ' .
FORECLOSURE-FRAUD-SUIT TO SET ASIDE DECIlEE.
A ruling in a foreclosure sUit, denying the petition of Rtorkl101ders to be made parties, in a foreclosure suit brollght against their corporatiOll, ill not a bar to an independent suit to set aside the decree for fraud.
J. S. Oooper, for complainant. G. W. Oothran, for defendant. HARLAN, Justice, (drally'.) Ifniaybe true, a.swas intimated or sug-
'gested in oral argument, that tmssuit, if prosecuted to a conclusion after issue joined, canriotpossibly result in any practical advantage to the complainants. Of this, the court cannot now judge, nor can it regard such considerations under the allegations of the bill to which , demurrers have filed. Taking those allegations to be truei 'as upon'q.emurrer must be done, a case is presented requiring the defendantsto answer. It is contended that the complainants, as stockholders in the railroad company, do not show any right in themselves
COUNTY OF TAZEWELL 'V. FARMERS' LOAN .. TRUST CO.
to commence and carryon such a suit as this, and that the sole right to sue on account of the matters set out in the bill is in the corporation itself. In support of this view the court is referred to Hawes v. Contra Costa Water Co., decided at the last term of the supreme court of the United States. Upon re-examining the opinion that case it is seen that the right of a.. stockholder to sustain a suit his own name, upon a cause of action existing iri the corporation itself, will be recognized when the suit relates t.o a. fraudulent transaction "completed or contemplated by the acting managers in connection with some other party or among themselves, or with other shareholders, corporation, or to the interes.ts of as will result in serious injury the other shareholders." After .enumerating other cases in the right exists in stockholders to sue, the supreme court says: "Possibly other cases may arise in which, to prevent irremediableilijl,ll'y'or a. total failure of justice, the court would be justified in exercisi,J:lg its powers." The bill, it is true, does not show any formal application to the board of directors that action be taketiin the name of the corporation to redress the wrongs alleged to have been done complainants and other stockholders. But it does show a condition of thing!? touching the control of the corporate affairs by those entrusted with their active management as would have rendered such a formal applicabill, tion an idle ceremony. Under the circumstances detailed in the existence of which must, on this hearing, be assumed, and inview of the injury which might have resulted from delay in suing, it was not reasonable to require such previous applica.tion, to be made to the board of directors. Hawes v. Contra Costa Water Co. supra. Upon the argument of this case attention was called to the fact that these stockholders had petitioned to be made parties in the foreclosure suit, and that upon the showing there made the petition was denied by the circuit judge. The evidence upon which the court acted in passing upon that petition is not before the court on these demurrers. Besides, the ruling there is not a bar to an independent suit to set aside the decree for fraud. The present action of the court must rest on the allegations of the bill. Assuming them to be true, the demurrer must be overruled.
See Hawes v. Contra Costa Water 00.11 FED. REr. 93, note.
SAWYlllB'V. PABISH' OF CONCORDIA.- ,
Court, W. D. Lo1-li8iana.
June, 1882. \
When there is a federal question' involved in the suit, the circuit court has jurisdiction, under act of March 3, 1875, without regard to the citizenship of the parties.
When a municipal corporation has made a contract during the exiAtence of a state law which provides an adequate remedy by compulsory taxation through the court8, that remedy is a vital element of the contract. '
CONTRAOT-STATU'I'E IMPAIRING OF.
The subsequent repeal of that law,and the adoption of a new constitution prohibiting the levy of ,any judgment tax and limiting all taxation to the current support of the localgovernment, would, if valid, impair the obligation or Bucha contract.
The invalidity of such en!ljctments D)ust be decree<l'by any cou.rt tryinc,,l/Ucb a case ,before, a enforcing the contract by the original remedy ,of judgment tax can be rendered.
Such invalidity is the result of a violation of section 10, art. 1, Const. U.S., alone, and a suit to e,nforce thecontrllft through that article is a suit" arising under the constitution of the United States."
Though the plaintiff could SUe in the state court, and could obtain full relief there, yet he can resort to the concurrent jurisdiction of the circuit court.
The jurisprudence of the state courts, construing the effect of said section upon state laws and constitutional articles. whe*er holding the tatter valid'or invalid as impairing the obligations of anterior contracts, cannot determine, the jurisdiction of the federal courts.
SAME-'-JURISDlcTION, ON WlrAT DEPENDS. .
The jurisdiction of the latter cannot be vested or divested by, !he character of the defence made, but depends upon the issues 'raised by plaintiff's -petition. and necessary to be determined to afford him adequate remedy. -'.
Does not the original jurisdiction of the circuit pourts, as enlarged by a.ct 0,1 March S, 1875, extend to all cases involving over $500, which could have belm carried, under former acts, to the supreme court on writs of error from state courts? An exception to the jurisdiction admits, for the purposes of the trial of'that plea. all the facts alleged in the plaintiff's petition.
PLEADING-ExCEPTION TO JURISDICTION.
et Liddell. for defendant·