77 FEDERAL REPORTER.
upon the oral· argument. Some of the questions raised as to the application of the act of 1890 seem, upon the authorities, not to be free from doubt, and they should be reserved for final hearing. The summary granting of a preliminary injunction is appropriate to a state of facts which presents some element of immediate necessity. There is none here. The laying of the cable was completed before this motion was submitted on affidavits and briefs, and there is nothing to show that its operation until final hearing will produce irreparable injury to the United States or to any individual. It is thought that the main proposition advanced by complainant's counsel is a sound one, and that, without the consent of the general government, no one, alien or native, has any right to establish a physical connection between the shores of this country and that of any foreign nation. Such consent may be implied as well as expressed, and whether it shall be granted or reo fused is a political question, which, in the absence of congressional action, would seem to fall within the province of the executive to decide. As was intimated upon the argument, it is further thought that the executive may effectually enforce its decision without the aid of the courts; but, even if defendants are correct in the contention that the executive has nothing to do with the matter, it is certainly indisputable that congress has absolute au· thority over the subject. That body is now in session, and if any urgent necessity, not disclosed in the papers before the court, should call for immediate action, it can settle the question of assent or nonassent with suchdeftniteness as to leave no further room for argument. Motion for preliminary injunction is denied.
SIGDA IRON CO. v. CLARK et al.
(Circuit Gourt, E. D. Pennsylvania. December 14, 1896.)
EQUITY JUkTSDlCTION,....BILL TO COLLECT STOCK
The fact that a resolution of the board of directors of a corporation under which a stockholder claims release from liability on his subscription is al· leged to be fraudulent and, void, will not give equity' jurisdiction of, a bill against the stockholder to collect the subscription. The invalidity of the resolution must me shown at law.
J: Hampton Barnes, 4,. R., Wintersteen, and Geo. Tucker Bispham, for pIa-inWl's. J. S. Olark a.nd R. O. Dale, for defendant. , DALLAS, Oircrtit Judge. The substance of the allegations of the bill of complaint in this case may be restated from the brief of complainant, as follows: ,
'·'First. That the defendants subscribed to certain shares of stOCk, and that the subscription has not been paid. Second. That the defendants refused to pay, on the ground that when they took the shares they had an understanding with the persons,w40 were engaged in organizing the company that they (the shares) should be held for the company in order that they might be used in a settlement of one of the company's construction contracts; that the shares were not so used
13IGUA IRON CO. V. CLARK.
because the contract In question fell through; and that thereafter a resolution was passed by the directors of the company directing a transfer of the stock to the company's treasurer as trustee. Third. That there was no such understand· ing with the company or its organizers; and that. even if there was, it was, in substance, an agreement- by the company to accept certain of its own shares, which agreement would be void as to creditors. Fourth. That an action at law has been brought In this court by the company against the defendants to recover the subscription, but that there Is danger that the recovery may be defeated by the resolution,--'the effect of the resolution might be to create a defense good In law. although Invalid In equity."
The prayers are for discovery, for cancellation of the resolution, for injunction against setting it up as a defense to the common law relief. The case has been heard upon de· action, and for murrer to the bill. I do not find it necessary to discuss the merits, and therefore will not do so. The conclusion at present reached is based solely upon the ground that a case for the equitable cognizance of this court has not been presented, and beyond that I intimate no opin. ion. In Stewart v. Railway Co., 2 De Gex, J. & S. 321, Lord Chancellor Westbury said:
"An instrument has been Improperly obtained. The plaintiffs are entitled to have the power to use It taken out of the defendants' hands, and they are not to be called on to submit the whole case to this court as the price of Its Interference."
The gist of the complaint and the object of the bill were the same in that case as in this. An instrument had been improperly ob· tained, and its use as a defense in a pending action at law was sought to be prevented. There was a demurrer for want of equity, but the court sustained the bill. This was done upon a ground of equitable jurisdiction, which, though "an old and well-ascertained" one in England, is, in such a case as this, inadmissible in the courts of the United States, because their jurisdiction as courts of equity is restricted by the requirement that, "whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the. aid of a court of equity, the plaintiff must proceed at law." This plaintiff has proceeded at law, and may in that proceeding attain the end which he proposes to accomplish by this one. Therefore this one caunot be sustained. In Whitehead v. Shattuck, 138 U. S. 150, 11 Sup. Ct. 276, Mr. Justice Field,speaking for the supreme court, said:
"The facts set forth In the bill of the plaintiff clearly show that he has a plain, adequate, and complete remedy at law for the injuries of which he com· plains. He alleges that he Is the owner In fee, as trustee, of certain described lands In Iowa, and his injuries consist of this: that the defendants are in possession and enjoyment of the property, claiming title under certain documents purporting to transfer the same, which are fraudulent and void. If the owner in fee of the premises, he can establish that fact in an action at law; and, if the evidences of the defendants' asserted title are fraudulent and void, that fact he can also show."
In the case before this court the complainant alleges that it is entitled to recover from the defendants the amount of their subscription to stock, and its injury consists in this: that the defend· ants are claiming immunity under a certain document purporting
'17 FEDERAL REPORTIll&
. to exonerate them from liability, which is fraudulent and void. But surely, if it be so, the fact can, and therefore must (under Whitehead v. Shattuck), be shown in the action at law. See, also, Buzard v. Houston, 119 U. S. 347, 7 Sup. Ct. 2;49, and Scott v. Nee· ly, 140 U. S. 106, 11 Sup. Ct. 712. Without prejudice to any right of the plaintiff respecting the matters alleged in the bill if set up in the action at law, the bill of complaint is dismissed. with costs.
GREENWOOD, A. & W. RY. et at. T. STRANG et aL STRANG et al. v. GREENWOOD, A. & W. RY. et aL (Circuit Oourt, D. South Carolina. December 4, 1896.)
EQUITY JURISDICTIONo-MoNEY DEMAND.
The courts of the United States sitting In equity have no jurisdiction to enforce 1I. demand for money only, unless there be an acknowledged debt, or one establlshed by a judgment rendered, accompanied by an interest In the debror's property or a lien thereon, created by contract or by some distinct legal pl'OCeeding. A railroad is not a building or structure, within the meaning of the South Carolina mechanics' lien law, and Is not subject to such liens.
Mordecai & Gadsden and Trenholm, Rhett & Miller, for complain· ants. Mitchell & Smith, for defendants. SIMONTON, Circuit Judge. These two cases have been con· solidated, and were heard together. The first·named case was in· stituted in the court of common pleas for Barnwell county, and has been duly removed into this court. The second case was a bill filed in this c()urt by W. B. Strang, Jr., & Co., in behalf of them· selves.and all other creditors. The facts are these: W. D. Strang, Jr., and Co., are railroad contractoL's. They entered into a contract with the Greenwood, Anderson & Western Railroad Company to construct a road from Seivern to Greenwood, and further to carry on the road to Batesburg, S. C. The work was to be paid for, part in cash, and part in bonds. For the purpose of this opinion, a detailed statement of the contract is not necessary. It is suffiCient to say that, after a very large portion of the work was performed, differences arose between the contractors and the railroad company, which led \0 a rescission of the contract, with a large claim for work done on the part of the contractors. Thereupon the contractors recorded in the proper offices of Barnwell and Lexington counties a mechanic's. lien on the railroad property, and claimed the right to enforce it; whereupon the proceedings first named were instituted by the railroad company, seeking an injunction against the contractors, restraining them from setting up, seeking to enforce, or proceeding under their mechanic's lien. The state court granted a temporary injunction after hearing, and in