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charter of a corporation, the statute requiring him to issue it when satisfied that the law has been in all respects complied with; to compel the Commissioner of Insurance to admit a foreign insurance company to do business in the State; or to compel a railroad company to maintain a station at a particular place, there being no statute so requiring. But mandamus may be resorted to, to compel an inferior officer to do the act which is sought to be enforced, in all cases where the officer has no discretion, and where he is under obligation to do the specific act, and there is no adequate remedy in the ordinary course of law."

§ 7830. Who Apply for the Writ: Plaintiff in the Action Where the writ is demanded to enforce a public right, the action is generally brought on behalf of the United States, or the State, as the case may be, by its Attorney-General or prosecuting attorney according to the directions of the statute law."

1 State v. Chase, 5 Ohio St. 528.

American Casualty Ins. Co. v. Fyler, 60 Conn. 448; s. c. 25 Am. St. Rep. 337; 22 Atl. Rep. 494; post, §7902.

'Northern &c. R. Co. v. Washington, 142 U. S. 492; 8. c. 11 Rail. & Corp. L. J. 115; 12 Sup. Ct. Rep. 283. An analogous doctrine is that the writ of mandamus does not issue to compel judicial action; but as judicial action cannot be in any case imputed to a private corporation, this principle is irrelevant to the present discussion. United States v. Lawrence, 3 Dall. (U. S.) 42; Chase v. Blackstone Canal Co., 10 Pick. (Mass.) 244. Where, however, an association or society has certain statutes for the control of the rights of its members in the society, and certain judicatories to administer those statutes, mandamus does not lie in behalf of a member to enforce his rights therein, until his remedies have been exhausted before the ad

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judicatory of the society. Ante, § 912. That the members of a county court act ministerially in contracting for public work and may be controlled by mandamus,· see Anderson County Court v. Stone, 18 B. Mon. (Ky.) 848. Mandamus against a judge to reinstate a suit instituted by a corporation, erroneously dismissed for want of sufficient security for costs: Ex parte Morgan, 30 Ala. 51.

People v. Bell, 4 Cal. 177.

In Northern &c. R. Co. v. Washington, 142 U. S. 492; 8. c. 11 Rail. & Corp. L. J. 115; 12 Sup. Ct. Rep. 283, it was prosecuted in the name of Washington Territory on the relation of Dunstin, its prosecuting attorney. In New Orleans &c. R. Co. v. Mississippi, 112 U. S. 12, it was brought on the relation of a district attorney of one of the judicial districts of the State of Mississippi. In Connecticut, a mandamus to compel a railroad company to continue to operate the road to the terminus fixed by the charter

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It may also be brought on the relation of some other public board or official, whose office is directly concerned with the performance of the public duty demanded of the corporation.' According to the weight of authority, it may also be brought on the relation of a private party, even where the object is to enforce the performance of a public duty. But other courts take the view that, except where the legislature has otherwise provided, only the State can proceed, whatever may be the form of proceeding, and that there can be no collateral inquiry, in an action by a private citizen, as to the failure of a corporation to perform a public duty, or to discharge a debt which it owes to the public generally.

§ 7831. Against Corporation in Corporate Name. -A writ of mandamus may properly be directed against a corporation

was held to be properly applied for by the attorney for the State. State v. Hartford &c. R. Co., 29 Conn. 538.

1 For instance, in Pennsylvania, a mandamus to compel a railroad company to reconstruct a highway injuriously occupied by it, may be instituted on the relation of the road commissioner of the township within which the highway is situated, acting officially and after procuring the consent of the Attorney-General. Com. v. New York &c. R. Co., 138 Pa. St. 58; 8. c. 20 Atl. Rep. 951.

Union Pac. R. Co. v. Hall, 91 U. S. 343; affirming s. c. 4 Dill. (U. S.) 479. In the opinion of the court in this case by Mr. Justice Strong, the following passage occurs, at page 355: "There is, we think, a decided preponderance of American authority in favor of the doctrine, that private persons may move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law-officer. People v. Collins, 19 Wend. (N. Y.) 6; County Comm'rs v. People, 11 Ill. 202; Ottawa v.

People, 48 Ill. 233; Hamilton v. State, 3 Ind. 452; People v. Halsey, 87 Ind. 344; State v. County Judge of Marshall, 7 Iowa, 186; State v. Rahway, 33 N. J. L. 110; Watts v. Carroll Parish, 11 La. An. 141. See also Dillon on Mun. Corp., sec. 695; High on Ex. Rem., secs. 431, 432; Cannon v. Janvier, 3 Houst. (Del.) 27. The principal reasons urged against the doctrine are, that the writ is prerogative in its nature, - a reason which is of no force in this country, and no longer in England, -and that it exposes a defendant to be harassed with many suits. An answer to the latter objection is, that granting the writ is discretionary with the court, and it may well be assumed that it will not be unnecessarily granted."

Martindale v. Kansas City &c. R. Co., 60 Mo. 508. In this case it was held that an action could not be maintained by a private person for the refusal of a railroad company to transport him to and from a station which they had abandoned.

in its corporate name, and need not necessarily be directed against the officers who wield its power.1

§ 7832. Corporation may Appeal where the Writ Runs Against its Officers.-But where the writ is directed against the officers of a corporation to compel them to perform a corporate act, it has been regarded as a proceeding against the corporation itself, in such a sense as entitled it to appeal from the decision in its corporate name."

1 State v. Chicago &c. R. Co., 79 Wis. 259; s. c. 12 L. R. A. 180; 48 N. W. Rep. 243. In many preceding cases where the writ was successful

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(ante, § 7589) it will be discovered that the defendant was a corporation.

'Louisville v. Kean, 18 B. Mon.

(Ky.) 9.

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§ 7837. Corporations may Acquire Title by Adverse Possession.Statutes of limitation operate upon the plaintiff, so as to deprive him of his remedy. Such being their operation, where a corporation, sued for the recovery of land, defends on the ground of title perfected through adverse possession under the statute of limitations, it is immaterial whether it is capable of acquiring title to land, under its governing statute; but it is sufficient that it can acquire and hold possession, and that it has done so. When it is considered that a corporation may be a disseisor, the conclusion naturally follows that, when sued in any kind of action for the possession of real property, it may defend upon the ground of having had an adverse possession during the period of the statute of limitations, equally with a natural person."

§ 7838. Limitation of Actions to Forfeit Charters. Statutes have been enacted imposing a special limitation upon the time within which an action can be brought by the State to forfeit the charter of a corporation for misuser or non-user. In Ohio, for instance, where the action is for misuser, the

7399.

Ante, §§ 5777, 6305, 7394, 7398,

Humbert v. Trinity Church, 24

Wend. (N. Y.) 587; People v. Trinity Church, 22 N. Y. 44; affirming s. c. 30 Barb. (N. Y.) 537.

limitation is five years, but where it is to oust it of a franchise not conferred, it is twenty years. The principle which applies to ordinary statutes of limitation is equally applicable to a statute of this kind, that want of knowledge on the part of the State or of its officer not superinduced by fraud, does not take the case out of the statute."

§ 7839. Limitation of Actions by Creditors against Trustees of Corporations. It has been held that the directors of a corporation are not such trustees of its assets in behalf of creditors as to debar them from interposing the defense of the statute of limitations, when the creditors bring a bill in equity to charge them with funds of the corporation alleged to be wrongfully converted by them. The theory of the holding is that the trust under which they hold the property of the corporation in favor of creditors is not an express trust, but a trust which the law raises for equitable purposes; and the court reason that one who is not actually a trustee, but upon whom that character is forced by a court of equity, may avail himself of the statute of limitations. That this is the rule in regard to trustees of those implied trusts which courts of equity raise for the purposes of justice, is true. But it is be

1 State v. Standard Oil Co., 49 Ohio St. 137, 188; 8. c. 34 Am. St. Rep. 541; 30 N. E. Rep. 279.

State v. Standard Oil Co., 49 Ohio St. 137; 8. c. 34 Am. St. Rep. 541; 30 N. E. Rep. 279. Under section 1047 of the Revised Statutes of the United States, providing that "no suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued," it has been held that the right to forfeit the charter of a national bank for a violation of its

provisions is limited to five years. Welles v. Graves, 41 Fed. Rep. 459; 8.c. 7 Rail. & Corp. L. J. 392. And it has been held that where, under this statute, the right to forfeit the charter of a national bank has been lost by lapse of time, this has the effect of barring a proceeding against the directors to charge them personally with the violation of law for which the charter might have been forfeited. Ibid.

Baxter v. Moses, 77 Me. 465, 481; 8. c. 52 Am. Rep. 783.

Baker v. Atlas Bank, 9 Metc. (Mass.) 182; Peabody v. Flint, 6 Allen (Mass.), 52; Farnam v. Brooks, 9 Pick. (Mass.) 212; Kane v. Black, 7 Johns. Ch. (N. Y.) 90; Stringer's

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