ties of legal procedure, by the unrestrained right of appeal, and by the crowded condition of the dockets of the appellate courts. It has also become the fashion for railroad corporations, desiring to extend their lines, to create and own dummy or catspaw corporations for the purpose of building such roads, which, when built, are leased to the former corporation for long terms of years. The dummy or catspaw corporation is literally created and owned by the dominant corporation, and exists only through the period of the building of the road, for the purpose of building it, and then passes out of existence and becomes insolvent. Of what value is the remedy afforded by an action at law for damages against such a corporation, which the dominant corporation can always stave off until the servient corporation passes out of existence? Not only should the catspaw corporation be restrained from taking possession of land until the damages shall have been assessed and paid, but the dominant corporation should be held responsible for any wrongs done to land-owners or others by the catspaw corporation, which are not included in such assessments. This just view was taken by the Supreme Court of Illinois;1 but the Supreme Court of Kansas, in an untenable decision, took the opposite view. The true theory which underlies the right to an injunction in such cases is that which we shall next proceed to discuss, that a court of equity will grant an injunction to restrain a corporation from the commission of ultra vires acts injurious either to public or private right.

§ 7774. Enjoining the Ultra Vires Acts of Corporations, Injurious to Public Right. —An information in equity may be brought by the Attorney-General on behalf of the public, to restrain a corporation from the doing of ultra vires acts injurious to public right. An examination of the cases supporting this jurisdiction will show that the jurisdiction is exercised

1 Kankakee R. Co. v. Horan, 131 Ill. 288 8. c. 41 Am. & Eng. R. Cas.

13.

Atchison &c. R. Co. v. Davis, 31 Kan. 645; s. c. 25 Am. & Eng. R.

Cas. 305. See a suggestive paper on this subject read by Hon. J. M. Avery before the Texas Bar Association, and republished in 27 Am. Law Rev. 361.

sometimes on the ground of nuisance, sometimes on the ground of trust, and in particular cases perhaps on both grounds.1 Proceeding on the ground of trust, such informations lie in the case of trusts for charitable purposes, where the beneficiaries are so numerous and indefinite that a breach of the trust cannot be effectively redressed except by suit in behalf of the public. Proceeding on the ground of nuisance, such informations lie to restrain public nuisances which affect or endanger the public safety or convenience, and which require immediate judicial interposition, such as obstructions of highways or of navigable waters. Upon this principle, injunctions are granted to restrain railway companies from unlawfully interfering with the public highway; to restrain street railway

1 Attorney-General v. Great Northern R. Co., 1 Drew. & Sm. 154; Attorney-General v. Mid-Kent &c. R. Co., L. R. 3 Ch. App. 100; Attorney-General v. Great Northern R. Co., 4 De Gex & Sm. 75; Attorney-General v. Liverpool, 1 Mylne & Cr. 171; Attorney-General v. Litchfield, 13 Sim. 547; Attorney-General v. Norwich, 2 Mylne & Cr. 406; Attorney-General v. Chicago &c. R. Co., 35 Wis. 425; Auckland v. Westminster Local Board, L. R. 7 Ch. App. 597; Frewin v. Lewis, 4 Mylne & Cr. 249, 254; State v. Saline County Court, 51 Mo. 350; 8. c. 11 Am. Rep. 454; People v. Third Avenue R. Co., 45 Barb. (N. Y.) 63; Attorney-General v. Aspinall, 2 Mylne & Cr. 613; Attorney-General v. Poole, 4 Mylne & Cr. 17; Attorney-General v. Dublin, 1 Bligh (N. R.), 312; Stockport District Water Works v. Manchester, 9 Jur. (N. s.) 266; AttorneyGeneral v. Commissioners, L. R. 10 Eq. 152; People v. Lowber, 7 Abb. Pr. (N. Y.) 158; People v. New York, 10 Abb. Pr. (N. Y.) 144; People v. New York, 32 Barb. (N. Y.) 102; Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co., 50 Pa. St. 91, 100; s. c. 88 Am. Dec. 534 (doctrine recognized).

4

Parker v. May, 5 Cush. (Mass.) 336; Jackson v. Phillips, 14 Allen (Mass.), 539, 579; Attorney-General v. Garrison, 101 Mass. 223. See Gen. Stats. Mass. 1860, ch. 14, § 20; Pub. Stat. Mass. 1882, ch. 17, § 6.

3 District Attorney v. Lynn &c. R. Co., 16 Gray (Mass.), 242; Attorney-General v. Cambridge, 16 Gray (Mass.), 247; Attorney-General v. Boston Wharf Co., 12 Gray (Mass.), 553; Rowe v. Granite Bridge Co., 21 Pick. (Mass.) 344. But it has been held that such an information cannot be maintained against a private trading corporation, where the acts complained of are not shown to have injured or endangered any of the rights of the public, or of any individual or other corporation, and where the only objection to them is that they are not authorized by its act of incorporation, and are, therefore, against public policy. Attorney-General v. Tudor Ice Co., 104 Mass. 239; s. c. 6 Am. Rep. 227.

• Attorney-General v. Great Northern R. Co., 4 De Gex & Sm. 75; Davis v. New York, 2 Duer (N. Y.), 663. Such injuctions are also sometimes granted on the ground that the threat

4

companies from making unauthorized extensions of their lines, the same being a public nuisance;1 to restrain municipal corporations from making unlawful issues of their bonds; to restrain public corporations from misapplying their funds in other particulars;3 to restrain railroad companies from exacting illegal tolls; to prevent a newly-organized corporation from commencing business until it has paid the license tax due the State; to restrain a railway company from carrying on the business of coal merchants; to restrain acts of inferior courts or boards, on the ground of public nuisance. But an information does not lie, at the suit of the Attorney-General, to restrain the ultra vires acts of a corporation, where the public rights are not injuriously affected thereby.

ened unlawful appropriation of the highway will interfere with the easement therein of abutting owners: Ward v. Ohio River R. Co., 35 W. Va. 481; s. c. 14 S. E. Rep. 142.

People v. Third Ave. R. Co., 45 Barb. (N. Y.) 63.

2 State v. Saline County Court, 51 Mo. 350; s. c. 11 Am. Rep. 454; State v. Callaway County Court, 51 Mo. 395. Attorney-General v. Liverpool, 1 Mylne & Cr. 171, 210 (overruling Pechel v. Fowler, 1 Anst. 549); Attorney-General v. Litchfield, 3 Sim. 547; Attorney-General v. Norwich, 2 Mylne & Cr. 406.

• Attorney-General v. Chicago &c. R. Co., 35 Wis. 425, 523, 524.

• Standard Underground Cable Co. . Attorney-General, 46 N. J. Eq. 270; 8. c. 19 Am. St. Rep. 394; 13 N. J. Law Jour. 113; 29 Am. & Eng. Corp. Cas. 589; 19 Atl. Rep. 733.

6 Attorney-General v. Great Northern R. Co., 1 Drew. & Sm. 154, 161.

'Attorney-General v. Forbes, 2 Mylne & Cr. 123, 133; Frewin v. Lewis, 4 Mylne & Cr. 249; s. c. 9 Sim. 66, 69. See also Wiggin v. New York, 9 Paige (N. Y.), 16, 20, 21; Hill v. Reardon, 2 Sim. & Stu. 431, 439, note

1.

Also, at the suit of private persons, to restrain nuisances by quasi-public corporations. Box v. Allen, 1 Dick. 49; Kerrison v. Sparrow, Coop. Cas. 305; Curtis v. Cropley, 3 Jur. 171. That equity will not try the question of nuisance or no nuisance, see Semple v. London &c. R. Co., 1 Railw. Cas. (Eng.) 120, 133.

8 Attorney-General ". Tudor Ice Co., 104 Mass. 239; s. c. 6 Am. Rep. 227. The grounds on which this jurisdiction rests were explained at length by Lord Cottenham in Frewin v. Lewis, 4 Myl. & Cr. 249, 254. Thie jurisdiction was exercised to restrain a local board of works from interfering with the erection of certain buildings which the plaintiff proposed to erect, in Auckland v. Westminster Local Board, L. R. 7 Ch. 597. The principles on which mandatory injunctions are granted in England on information of the Attorney-General, at the relation of private parties, to restrain corporations from acting in excess of their powers, so as to commit injuries upon the relator, were explained by Lord Cairns, L. J., in Attorney-General v. Mid-Kent &c. R. Co., L. R. 3 Ch. 100, 103; and by

§ 7775. Such Jurisdiction Supported upon the Ground of Trust. We have already had occasion to note the principle that injunctions will lie at the suit of minority stockholders to restrain the directors or trustees of corporations from making applications of the corporate funds which are not authorized by the charter, governing statute, articles of association, or other constating instrument; and that this jurisdiction refers itself to the well-known power of a court of equity of superintending the execution of trusts.1 An analogous doctrine supports, on the ground of trust, the jurisdiction of courts of chancery on informations brought by the Attorney-General on behalf of the public to restrain ultra vires acts of corporations injurious to public right. Thus, it has been reasoned in the English Court of Chancery that when it is ascertained that a borough fund of a corporation is a trust fund, then, since the Court of Chancery has jurisdiction to

acts complained of, where the injury flowing from those acts-exacting illegal tolls-was an inference or presumption of law. Ibid. 552. Nor, on an application by the Attorney-General of New York for an injunction against a corporation to restrain a violation of law, is it necessary to show specifically that the commission of the act would produce injury to the relator under section 219 of the Code:

Rolf, L. J., in the same case: Ibid. 104. Other English cases where this jurisdiction has been exercised are: Attorney-General v Brown, 3 Swanst. 65; Attorney-General v Great Northern R. Co., 1 Drew. & Sm. 154, 161. The grounds of extending this jurisdiction to cases of public injuries are learnedly and cogently set forth in the opinion of Mr. Chief Justice Ryan, in that celebrated collection of cases in Wisconsin, known as the "Granger People v. Metropolitan Bank, 7 How. Cases" Attorney-General v. Chicago Pr. (N. Y.) 144. That an action is

&c. R. Co., 35 Wis. 425, 532, 533. The learned Chief Justice pointed out that the grounds of jurisdiction were none the less clear because it has the effect to turn the writ of injunction into a quasi-prerogative writ. Ibid. 550. In the same decision the objection that this extension of the jurisdiction operated to impair the right of trial by jury was also forcibly met and shown to be untenable: Ibid. 550, 551. Nor was it an objection to such an information that it failed to aver any specific injury to the plaintiff from the

not maintainable by a stockholder to prevent, by an injunction and receiver, the usurpation of corporate powers, but must be brought by the Attorney-General,-see People v. Erie R. Co., 36 How. Pr. (N. Y.) 129. That injunctions are void and need not be obeyed, unless the statutory notice has

been given, - see New York v. Starin, 56 N. Y. Super. 153; 8. c. 2 N. Y. Supp. 346; 16 N. Y. St. Rep. 882.

1 Ante, § 4518, et seq.

As was held in Attorney-General v. Aspinall, 2 Mylne & Cr. 613, 618. 387 6177

prevent breaches of trust, it will follow that it has jurisdiction to restrain a misapplication by the corporate authorities of such a fund, although the same may have been raised by a rate or tax. In one case Lord Eldon supported the jurisdiction of the Court of Chancery to restrain the ultra vires acts of the commissioners for paving, lighting and cleansing an incorporated town, on the ground that the fund which had been placed by the act of Parliament at their disposal for a certain purpose presented the case of a gift or grant for charitable uses, within the terms of the statute of Elizabeth. although the jurisdiction in England to control, in this manner, the trustees of parishes and other public and quasi-public corporations, appears to be well settled, and although the jurisdiction might not be rested upon that statute in America, but would be generally rested on the broad ground of the power of a court of equity to deal with trusts, the existence of the jurisdiction is equally beneficial and scarcely less doubtful.

But,

§ 7776. Injunctions to Restrain Invasions of Corporate Franchises.-Injunctions will be granted to restrain the invasion of franchises granted to corporations where the corporation would be without an adequate remedy at law in the sense already considered,—as, for instance, to protect a turnpike company in its exclusive privilege of erecting toll gates and receiving tolls upon a common highway; or to protect the grantee of an exclusive right to the navigation of a river, to whom the right had been granted in consideration of improving the navigation and putting a boat thereon within a stated period of time. Speaking with reference to this subject it has been said by Chancellor Kent: "The equity jurisdiction

1 Attorney-General v. Poole, 4 Mylne & Cr. 17.

2 Stat. 43 Eliz., ch. 4; AttorneyGeneral v. Brown, 1 Swanst. 265, 306.

3 Attorney-General v. Pearson, 2 Coll. 581. Compare Attorney-General v. Compton, 1 Young & Coll. 417; Attorney-General v. Cullum, 1 Young & Coll. 411.

• Osborn v. Bank of United States, 9 Wheat. (U. S.) 738.

"Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611; ante, §§ 5304, 5404.

Moor v. Veazie, 31 Me. 360. See also Bush v. Western, Finch's Prec. in Chan. 530; Whitechurch v. Hide, 2 Atk. 391; Livingston v. Van Ingen, 9 Johns. (N. Y.) 507.