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defendants cannot be joined in one such action because their liability is not joint but several. The Circuit Court sustained the demurrer and gave judgment for the defendants. This writ of error has been brought to reverse that judgment.
Mr. Harvey Terry for the plaintiff in error.
MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.
The individual liability of stockholders in a corporation is always a creature of statute. It does not exist at common law. The first thing to be determined in all such cases is, therefore, what liability has been created. There will always be difficulty in attempting to reconcile cases of this class in which the general question of remedy has arisen, unless special attention is given to the precise language of the statute under consideration. The remedy must always be such as is appropriate to the liability to be enforced. The statute which creates the liability may declare the purposes of its creation and provide directly or indirectly a remedy for its enforcement. If the object is to provide a fund out of which all creditors are to be paid share and share alike, it needs no argument to show that one creditor should not be permitted to appropriate to himself, without regard to the rights of others, that which is to make up the fund.
The language of the charter is peculiar. The stockholders are not made directly liable to the creditors. They are not in terms obliged to pay the debts, but are “ liable and held bound .. for
any sum not exceeding twice the amount of ... their . . shares.” This, as we think, means that on the failure of the bank each stuck holder shall pay such sum, not exceeding twice the amount of his shares, as shall be his just proportion of any fund that may be required to discharge the outstanding obligations. The provision is, in legal effect, for a proportionate liability by all stockholders. Undoubtedly, the object was to furnish additional security to creditors, and to have the payments when made applied to the liquidation of debts. So, too, it is clear that the obligation is one that may be enforced by the creditors; but as it is to or for all creditors, it must be enforced by or for all. The form of the action, therefore, should be one adapted to the protection of all. A suit at law by one creditor to recover for himself alone is entirely inconsistent with any idea of distribution. As the liability of the stockholder is not to any individual creditor, but for contribution to a fund, out of which all creditors are to be paid alike, the appropriate remedy is by suit to enforce the contribution, and not by one creditor alone to appropriate to his own use that which belongs to others equally with himself. We think this case comes clearly within the rule laid down in Pollard v. Bailey (20 Wall. 520), to which we adhere.
The second ground of demurrer is equally fatal. The liability of the stockholders is several and not joint. Each stockholder is bound for his own share and no more. No judgment can be rendered against him for what another should pay. It follows that in an action at law each stockholder must be separately sued. In equity it is different, for there the decree can be moulded to suit the exigencies of the case, and each stockholder can be held liable and proceeded against for what he is bound to pay, and no more. Undoubtedly, under the provisions of some charters, suits at law may be maintained by one creditor against one or more of the stockholders. The form and extent of a statutory liability of this kind depend upon the particular phraseology of the statute which creates the liability. All we decide is that, under this charter, the suit to enforce the liability should be in the nature of a suit in equity, by or for all creditors, and that it cannot be at law by one creditor for himself alone, against two stockholders who are not jointly liable on account of the shares standing in their respective names.
GAS COMPANY v. PITTSBURGH.
A gas company which contracted, for a valuable consideration, to furnish a city
with gas " free of charge,” paid thereon the tax imposed by sect. 94 of the Internal Revenue Act of June 30, 1864 (13 Stat. 264), as amended by the act of July 18, 1866. 14 id. 128. Held, that the city is not liable to the company for the amount so paid.
ERROR to the Supreme Court of the State of Pennsylvania.
This was a suit brought by the Pittsburgh Gas Company against the city of Pittsburgh, to recover certain moneys paid by the company to the United States.
That company was incorporated by an act of the legislature of Pennsylvania, approved March 16, 1848, the city of Pittsburgh being the owner of six hundred and ninety-eight shares, of the value of fifty dollars each, and having power to elect six of the twelve trustees of said company. A supplement to said act, approved Jan. 31, 1860, provided as follows, viz. :
“ Sect. 7. That whenever the provisions of this act shall have been accepted by the stockholders of said company and the councils of said city corporation, as hereinafter provided, the mayor, aldermen, and citizens of Pittsburgh shall forthwith cease to be stockholders in said company, and all the stock held by the city corporation or standing in its name on the books of the said company shall be surrendered to the company, and the said city corporation shall have no further right to or interest in said stock; but the same shall become a part of the the funds of the company, and be distributed among the stockholders pro rata.
“Sect. 8. That the said company shall, at the cost of the city corporation, construct, erect, and keep in order all such public lamps and burners in the streets as the city councils may direct, and shall also furnish all the gas required for consumption in the public street-lamps, market-houses, council-chambers, and public offices of the city, at the following rates, that is to say: Any quantity not exceeding twelve and one-half millions cubic feet of
gas annually, free of charge, and any excess over that quantity that may be required annually at a rate not exceeding seventy-five cents for each one thousand cubic feet of gas in such excess. The price of such excess so furnished, together with the cost of constructing, erecting, and keeping in order the public lamps and burners in the streets, shall be paid to the coinpany quarterly by the city corporation.”
In pursuance of said act the councils of the City of Pittsburgh, on the third day of February, 1860, passed an ordinance as follows:
“That the provisions of an act of assembly approved the thirtyfirst day of January, A.D. one thousand eight hundred and sixty, entitled . A supplement to an act to incorporate the Pittsburgh Gas Company,' approved the sixteenth day of March, A.D. one thousand eight hundrel and forty-eight, be and the same are hereby approved and accepted by the councils of said city, and that a copy of this ordinance, properly authenticated by the presidents and clerks of councils, be delivered to the said gas company, and the mayor of the city of Pittsburgh is hereby authorized and instructed to make a proper surrender to the Pittsburgh Gas Company of all interest and ownership of s:id city in any stock or other property and effects in said giis company. That all ordinances or paris of ordinances inconsistent herewith be and the same are hereby repealed.”
Pursuant to said act and ordinance, the mayor of said city made and executed a surrender of its stock, which was accepted upon the terms of said act by the company. The latter, dwing the six monthis ending Jan. 1, 1870, furnished a large number of feet of gas, including 6,230,000 feet to be furnished free, under said act of assembly and agreement. By the ninetyfourth section of an act of Congress entitled “ An Act to provide internal revenue to support the government, to pay interest un the public debt, and for other purposes," approved June 30, 1864, and a supplement thereto, approved July 18, 1866, it was provided as follows, viz. :
“Sect. 3. Amendment to sect. 94. On gas, illuminating, made of co:), wholly or in part, or any other material, when the product skall not be above two hundred thousand cubic feet per month, a tax of ten cents per one thousand cubic feet; when the product shall be above two and not exceeding five hundred thous:inil cubio feet per month, a tax of fifteen cents per one thousand cubic feet; when the product shall be above five hundred thousand and not exceeding five millions of cubic feet per month, a tax of twenty cents per one thousand cubic feet; when the product shall be above five millions, a tax of twenty-five cents per one thousand cubic feet; and the general average of the monthly product for the year preceding the return required by law shall determine the rate of tax herein imposed. And where any gas-works have not been in operation for the next year preceding the return as aforesaid, then the rate shall be determined by the estimated average of the monthly product: Provided, that the product required to be returned by law by any gas company shall be understood to be, in addition to the gas consumed by said company or other party, the product charged in the bills actually rendered by the gas company during the month preceding the return; and until the thirtieth day of April, eighteen hundred and sixty-seven, all gas companies whose price is fixed by law are authorized to add the tax herein imposed to the price per thousand feet on gas sold; and all such companies which have heretofore contracted to furnish gas to municipal corporations are, in like manner, and for the same period, authorized to add such tax to such contract price: Provided, further, that all gas furnished for lighting street-lamps, or for other purposes, and not measured, and all gas made for and used by any hotel, inn, tavern, and private dwelling-house, shall be subject to tax whatever the amount of product, and may be estimated, and if the returns in any case shall be understated or underestimated, it shall be the duty of the assistant assessor of the district to increase the same as he shall deem just and proper: And provided, further, that gas companies located within the corporate limits of any city or town, whether in the same district or otherwise, or so located as to compete with each other, shall pay the rate of tax imposed by law upon the company having the largest production : And provided, further, that coal-tar and ammoniacal liquor produced in the manufacture of illuminating gas, and the products of redistillation of coal-tar, and the products of the manufacture of ammo niacal liquor thus produced, shall be exempt from tax.”
By a supplement to said act, passed March 2, 1867, sect. 94 of said act of July 18, 1866, was further amended as follows: “ By striking out in the paragraph relating to gas the words, and until the thirtieth day of April, 1867.?” The city paid the amount of bill for gas and the tax upon
furnished up to Jan. 1, 1871, except the amount of tax on 6,250,000 feet of gas which it claimed said gas company had contracted to