748 the. reason of that case supports our judgment in the present case. In Oarrier v. Gordon, the property purchased had not been moved at all by the purchaser. It remained at the place o! purchase, and could not, without the utmost violence to language, be said to have been in the course of transportation. Indeed, the averment was not that the property was in transit, but that the plaintiff intended to remove it from the state upon the opening of navigation, etc. In delivering the opinion the court say:
" It is true that in order to constitute it property in the state, within the meaning of the law, it must have a situs in the state. If it is, at the time the tax attaches, in tra1tsitu, either through the state or from a point in the state to a point outside the state, it is not to be regarded as propelty in the state, Within the xp,eaning of the statute, but as property iog to the place of its destination. ,But such was not the situation of this property' at the time it was'returned for taxation.' 'There is nothing in the plaintiff's petition toshow that the plaintiff's timber had in any sense started on its journey, or had been removed from the place or places it had been purchased. ' , ,'. j, To say that the simple purchase of the property with an' intention to remove it'lfould relieve it from liability to taxation, would be to makhts liability.depelld 'upr;>n the mere intention of the owner," etc.
We see :nothing, to obJect to in the doctrine oHhe Ohio court in' this. eaS6. It seems to U8 to be entirely in harmony with our judgment in the present case. Demurrer overruled.
R. Co. v. R. 00.
(Circuit Court, D. Iowa, O. IJ
January 21, 1881.)
The general solicitor of the plaintiff corporation, being an officer unknown to the articles of incorporation and the by-laws, has no authority to institute and prosecute suits without the sanction of the board of directors, and such sanction not appearing in this case, the suit was dismissed on motion.
Motion to Dismiss.
D. M... H.
n. co.: V.
MCCRARY, C. J.Thesecaaes are 'before us on motions to dismiss upon the ground that the plaintiff has not authorized their institution, and because the president of the plaintiff has directed their dismissal. The suits were instituted by the general solicitor of the plaintiff corporation, without the authority of the board of directors. The president of said corporation has directed their dismissal. It is not necessary to consider whether the president of a corporation can, without the assent of the board of directors, dismiss a suit which has been instituted by proper authority in the name of such corporation. Much must depend, in all such cases, upon the provisions ,of the charter and by.laws of the statutes by which it is,govElrned. We have examined the articles of incorporation and the by-laws of the plaintiff, the Des Moines & Raiiroad Company, as well as the affidavits submitted to uS,and we fllldnowhere ;any authority conferred upon the' general solicitor of th81t comp'anyto'institute 8, suit 'in its"name. <The' office' of general solicitor is not mentioil(ld'ih articles no evidence is offered tending to show that the board of directors ever took any action looking to of: suits. In the absence of such action, and in view ,of the fact that the bO!Lrd has never·ratified theaetiQIi of the'solicitor in instituting these 8uits,we are obliged to h@ld that tbey are here witholltthe authority or consent of'the'pla,intiff. The general solicitor, being anoflicer unknown to the'articles of incorporation and the by-laws, IriUBtbe regarded as sitnply the agent and employe of the corporation,'with authority only to execute the orders of the board of directors.rtis elaimed that, although the board has taken no official action upon the subject, a majority of its members favor the prosecution of these suits. If this be so, that majority can very e1tsilyfind means to make it well known. The board of directors is the ultimate authority to decide this question. Whatever action the court might take upon the present motion, these suits could not be prosecuted to judgment against the wishes of a majority of the ,board. Nor can the president prevent their prosecution if the board decides that they shall
goon.:' What we hold now is that the solicitor has no &uthorjty to institute and prosecute suits without the sanction of the board,. and that such sanction does not appear in these c.ases. The motion to dismiss will be sustained, but should the board of directors hereafter order that a motion to re-instate the cases be made,,· and that the suits be prosecuted to judgment, the court will order their re-instatement. LOVE, D. J., concurs.
WELLS RIVER MANUF'G Co. and others.
May 27, 1881.)
(Cireuit (Jourt, D. Vrrmont.
REMOVAL-NECESSARY PARTI'E!!--'OWICERS OF CORPORATIllN.
The officers of a corporation are not such neeellllary parties to a suit involving the t.itle to landll, alleged to have been fraudulently conveyed by the corporation, as to prevent a rAmovaJ under the act M:March 3, 1875.
In Eqnity. Motioll to reman4. Leslie w Rogers, for plainti;ff. E. W.:Smitk, for defendant.s. WREl'J:LER, D. J. This Buitwas commenced in Caledonia countycoul1t, ofchaDcery. Tlle plaintiff and. the defendant Fesaenden, are citizens of Vermont; all the other defendants are olother states. The suit is brought to set aside a levy of e:x:ecutipn in favorof Gilbert A. Tapley against the Wells ;River Manufa.cto,ring Company, and a conveyance from hi:m to Walter A. Tapley, alleged to. be fraudulent and void as,W creditors .of that company, of Hs lands, afterwards and. le-yied upon by the plaintiff to collect a,debt of the,company. existing at the time oithe former levy, and to c.onfirm.the title of the plaintiff ,to the lands, which are in, possession of the qefendant Fessenden. as an officer of the company; and thedefendfl,nts Richardson and Potter, under the Tapleys, The suit into this court 00. petition ()f defendants, who are Citizens of other states,