The injunction will be conditioned that the rate of the charge shall in no case exceed that established by the supreme court, and a defendant may at any time apply to the court for an order to enforce this condition.
v. MACON and
.(aiR-cuit Court,' E.
May 30, 1887.)
OOBPORATIONS-RECErvER,;""CONSTRUCTION OF ORDER-'AsBEBSMENTIl.
In a suit brought by a st0okholder, on behalf of himself and of oth/1r stock+ holders who mayjQin himin suit, against the corporation, its dire<;,Jrs and sl1perintimdent, seeking an injunction to prevent waste, and asking for a receiver,' receiver wail appointed, and the order. contained J these words: "And; Uthere shall be any sums due upon thersbal,'es of capjtalstock of said cOIllpany. the. said receiver will proceed to and recover the.si!.me, unless the,persons from whom the said sums may be due sball be wholly solvent; and for this purpose may prosecute actions, "etc. Beld,that the authority intended to be confex:red WaS merely to bring suit in case the court should assessment, and that the order of itself did not amQunt to a . call,.. from which prescription would begin to rUD.
On Motion for New Trial. Alfred GoldthwaUe, for plaintiff. Tlwmaa J. Semines and James Legendre, for defendants.'
BILLINGS, J. This action is brought for the recovery of 70 per cent. of the subscri)?tion, as shareholders, against numerous citizens of this state. All other questions having been adjudged, the remaining question is to be considered whether the order appointing a receiver,and defining his powers, in the case of Reynolds v. National, Exp. ct Tramp. Co., formerly pending in the circuit court for the Fourth circuit of the United States, district of Virginia, on January 12, 1867, amounted to a call upon the stockholders for the fllllamollnt of theirsubscriptiolls for stock. The question is, did the order or decree amount to any call at all? If it did, theI\ it is' conceded 'prescription began to run, and the action would, to the extent of the call" be barred. That suit is an action instituted by Reynoldsasa stockholder, he owning, as he alleges, 50 shares of the stock of the corporation, in behalf of himself and the other stockholders who may join him in the suit against the corporation, its directors and superintendent. The suit was an injunction suit to prevent waste by paying usurious interest and by gross negligence. A receiver is also asked for, and was appointed. The order appointing the receiver is in the usual form, and contains these words: "And, if there shall be any sums due upon the shares ofthe capital stock of the said company, the said receiver will proceed to collect and recover
JReported by Joseph P. Hornor, Esq., of the New Orleans bar.
the same, unless the persons from whom the said sums may he due shall be'wholly insolvent; and for, this purpose may proseouteactions," etc. are about to sell the stock of The bill further states that the plaintiff himself and ,others,. though it does not state whether for an unpaid assessment or for some other cause. It appears that the capital stock of the company was $5,000,000. It seems to me that the language, "and if there shall be any sums due," etc., must be construed by the considerations coming from the nature of arid parties,to the suit. suit is brou.ght bya stockholder to prevent waste, and to wirid up the l:tffairs 'Of a corporation. The amount of indebtedness is not alleged, further tl1an that the corporation is averred to be insolvent. '.the creditors are not complainants. Nobody is a party or is asked1;Q,become a party complainant except stockholders. Under these ciroutns'ta:nces, and upon these facts, I construe the language givthe words" if there shall be ing the receiver power to ,bring ,suit;-i. mean to bring any sums due upon the sh.ares :ofthe capital suits, u orif.in the course of'litigation the court shall order any assessment."" Jt"wasintendedby tliese\'Vordsnot to levy an assessment, but to give authority to collect whatever assessments should therel;l,fter be levi\3d,'My ()pinion is that here no action of the court making what is termed a" call", or aBllessment upon the l.ltockholders for payment of their subscriptions. Therefore I must still hold that the plea of prescription is overruled. It follows that judgment must go for the plaintiff. As to the time of entering this ju.dgment. None of these numerous causes are appealable. This is a suit brought by a trustee to wind up . the affairs of a corporation whosedebtors reside in many states. There will be no inconvenience caused to him if there should be a delay in entering these judgments, prov'ided, there is security given. Therefore a motion may be made. at any time within 10 days, by any of the defendants, upon their giving bond with security for the payment of any judgment which shall, be ultimately rendered against them in the cause. Upon such motion being made, and. such a bond being given, (say to excaed by one-fourth the claimed in the petition,) the court will take under advisement the ,motion, and hold the same until the question of rescission of the order to pay the assessment is passed upon in the appellate chancery court in Virgjnia. In the other cases judgment will be entered and signed at the end of 10 days.
& N. Y.
Atty. Gen. of New Jersey, 'II. BALTIMORE & N. Y. R. Co. and others.
(Oircuit Oourt, D. New Jeraey. August 1,1887.)
The act of congress of June. 16, 1886, authorizing the Staten. Island Rapid Transit Company, a corporatIOn of New York, and the BaltImore & New York Railroad Company, a corporation of New Jersev, or either of them, to construct and maintain a railroad 1)ridge across the Staten Island sound, known as "Arthur Kill," and establishing "the same a post-road," is within the power "to regulate commerce" vested in congress by the constitution of the United States, it:being competent for congress, under that grant of powflr, to open up commercial communication between different by · as weUas by wate,r.! _ ' 2. SAME-CONSENT OF THE STATES· .rrhe power of congress in this respect supreme, and the act in pl:\.in terms granting authority to bridge, the privilege iSrlllotprolllissory in its character, and may be exercised without the conseiltor concurrence of the states in which the structure is authorized by the act to be placed. 8. SAME-GRANT CONSTRUED. ' , The grant by congress, in the exercise ,of its power to regulate commerce, of the privilege of erecting and maintaining a bridge across navigable water fromonestate to another, is, in effect, a grant of the, mere use of the soil for-the structure, not an assumption of over such territory'. Cession of the soil by the state in which the land lies is, ; 'therefore, not necessary to the e,xercise of the privilege.' 4: SAME-'-CORPORATlONS-CITIZENS' OF ANOTHER STATE-FOURTEENTH AMENDMENT.
6: EMINENT DOMAIN-LITTORAL RIGHTS-STATE AND FEDERAL JURISDICTION.
The New Jersey act of April 6, 1886, prohibiting any person or corporation from erecting any bridge, etc., over or in any part of the navigable w,aters where the tide ebbs and flows, and separating that state from other states, without permission frolllthe legislature of that state, is unconstitutiona) so far ,as it is sought to be put into operation against the Staten Island Rapid Transit Company, a corporation of New York, claiming to exercise the prlvi· lege conferred upon it by the act of congress of June 16,1886, of erecting and maintaining a railroad across Staten Island sound, or " Arthur Kill. "
The shore and lands under water of the navigable streams and waters of New Jersey, which, priOr to the Revolution, belonged to the king of Great Britain as part of the jura regalia of the crown, passed to the state at the ,close of that war, but the state succeeded to them as trustee of the people at largo; and, the right of the state therein not being such property as is susceptible of pecuniary is not "private property," within the meaning of Const. U. S. amend. 5, providing that private property, shall not be taken for public use without just compensation.
On Bill for Injunction. John P. Stockfim, Atty. Gen., Barker Gummere, .and Cortlandt Parker, for informant. A. Q. Keasbey and W. W. Macfarland, for defendants. This case was commenced byi%rmation filed by the attOrney general of New Jersey, in the courto( chancery of tb,at
lAs to what is included under the term" commerce, " wUhin the meaning of the clause of the constitution granting the power to congress "to' regulate COlDlIIl>I'Ce," see Head-Money Cases. 18 Fed. Hep.135, and note; Memphis & L. n.R Co. v.Nolan,14 Fed. Hep. 534; Norfolk & W. R. Co. v. Com., 6 Atl. Rep. 45.