[§ 2936 for a nuisance of essentially personal injury, e. g., a drinking-place nuisance defined by statute with a right of action so limited that none but natural persons could suffer the contemplated injuries,25 a nuisance to the property of a church corporation unfitting it for worship is not to be regarded as consisting of two causes of action, one to the intangible right of worship suable by the members, and one to the property suable by the corporation; but it may sue for the entire injury.26 In like manner, a suit for an injunction or other equitable remedy may be maintained against a corporation under the same circumstances as against an individual 27 if there is not a legal rem viding for transfers. Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368, 46 L. Ed. 592. An injunction will be granted to restrain town authorities from removing the track of a railroad corporation lawfully laid upon its streets. Belington & N. R. Co. v. Alston, 54 W. Va. 597, 46 S. E. 612. 25 A drinking place though a public nuisance, which private persons specially injured in their property may enjoin by virtue of statute, cannot be enjoined by a corporation merely because its employees become unfit for work by drinking there. Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 37 L. Ed. 686, aff'g 3 Wash. T. 452, 17 Pac. 890. Nor can it sue under a like statute which makes injury to life, health or senses the ground of injunction, nor under one which enables an employer to sue when injured in person, property or means of support by the furnishing of intoxicants to an employee. Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 37 L. Ed. 686. 26 A nuisance to the enjoyment of church property may be enjoined by the corporation as well and to as full an extent as if its members were the plaintiffs. Baltimore & P. R. Co. v. Fifth Bapt. Church, 108 U. S. 317, 27 L. Ed. 739. See also First Bapt. Church v. Schenectady & T. R. Co., 5 Barb. (N. Y.) 79. 27 See generally chapter on Injunctions, infra. See also the following: United States. Glucose Sugar Refining Co. v. St. Louis Syrup & Preserving Co., 135 Fed. 540; United States v. Northern Pac. R. Co., 134 Fed. 717; Sidway v. Missouri Land & Live Stock Co., 116 Fed. 381; Kittel v. Augusta, T. & G. R. Co., 65 Fed. 859. Alabama. Niehaus v. Cooke, 134 Ala. 223, 32 So. 728. Colorado. Farmers' High Line Canal & Reservoir Co. v. White, 32 Colo. 114, 75 Pac. 415. Kansas. Warner v. Imbeau, 63 Kan. 415, 65 Pac. 648. New Jersey. Wilson v. American Palace Car Co., 67 N. J. Eq. 262, 58 Atl. 195; Pennsylvania R. Co. V. Angel, 41 N. J. Eq. 316, 56 Am. Rep. 1, 7 Atl. 432. West Virginia. Harman v. Caretta R. Co., 61 W. Va. 356, 123 Am. St. Rep. 985, 56 S. E. 520. Equity has jurisdiction of a bill against a corporation and its directors and stockholders containing a prayer for discovery and for repayment of an amount alleged to have been paid over by reason of fraudulent representations, the bill further setting forth that the stockholders had conspired to do business in violation of their charter and that the corporation was insolvent. Edwards v. Michigan Tontine Inv. Co., 132 Mich. 1, 92 N. W. 491. edy.28 So a corporation may be restrained by order of court from bringing a certain action.29 Equitable remedies are available on its contracts 30 or to enforce its trusts.31 In numerous cases specific performance has been awarded both for and against corporations, apparently without any question of their capacity for such remedy; and it has been applied not only to land, but also to corporate stock where the legal remedy was inadequate.32 Equity will not try the right of the corporation to be or to exist as such; that is the office of a quo May be sued as recipient or transferee of trust property, in breach of the trust. Barksdale v. Finney, 14 Gratt. (Va.) 338. Injunction against ultra vires transactions in general, see Chapter 37, "Ultra Vires," supra, and chapter on Injunction, infra. 28 Equity will not take jurisdiction in order to sue a former merged corporation when it can be sued at law through the consolidated corpora tion. White School House v. Post, 31 Conn. 240. Member may have an accounting under a contract with corporation. Edwards v. Michigan Tontine Inv. Co., 132 Mich. 1, 92 N. W. 491, 9 Det. L. N. 502. Suit for rescission and cancellation of land purchase will lie without res titution to stockholders of what they advanced to the corporation in that connection. United New Jersey Railroad & Canal Co. v. Hoppock, 28 N. J. Eq. 261. 29 American Press Ass'n v. Brantingham, 57 N. Y. App. Div. 399, 68 N. Y. Supp. 285. 30 Equitable remedies on or by reason of ultra vires contracts, see Chapter 37, supra. While ordinarily an agent cannot call its principals to account, a selling and marketing corporation, whose agency is to distribute receipts from sales among its members, may sue for an accounting of overpayments and to adjust and distribute the shares, the members being numerous (2800, of whom 600 were defendants), thereby avoiding multiplicity. California Raisin Growers' Ass'n v. Abbott, 160 Cal. 601, 117 Pac. 767. A corporation, which in effect has been made the trustee of a charitable trust may sue in equity for accounting of the fund remaining in an executor's hands and thence passing to defendant as legatee. Proprietors of Collins Park & Belt R. Co. v. Short Elec. Ry. Co., 98 Ga. 62, 25 S. E. 929. A corporation may maintain a suit in equity against persons holding its negotiable bonds to have same canceled and their transfer enjoined. Pere Marquette R. Co. v. Bradford, 149 Fed. 492. Rescission and cancellation of ultra vires contracts and restitution of thing received, see Chapter 37, supra. 31 A corporation thereto authorized may in its own name sue to en force a charitable trust, as well as the attorney general could. Proprietors of White School House v. Post, 31 Conn. 240. 32 As to land or interest therein, see: Maryland. Maryland Clay Co. of Baltimore v. Simpers, 96 Md. 1, 53 Atl. 424 (corporation defendant). Massachusetts. Plunkett v. Metho dist Episcopal Society, 3 Cush. 561 (corporation defendant). Minnesota. St. Paul Division No. warranto,33 but injunction may prevent the unlawful exercise of a franchise or the commission of a public nuisance.34 § 2937. Extraordinary legal remedies. From the postulate that a corporation may sue as a natural person could, it would follow that it might, given the requisite special or "beneficial" interest, institute an action of mandamus, prohibition or quo warranto. Indeed it does not seem to have been questioned that a corporation may be the relator in a prohibition proceeding, and the writ has been granted or application entertained in various instances as exemplified in the footnote,35 1, S. of T. v. Brown, 9 Minn. 151, 11 Minn. 356 (corporation plaintiff). Missouri. Eggert v. Chas. H. Heer Dry-Goods Co., 102 Mo. 512, 15 S. W. 65 (corporation defendant). New York. St. Regis Paper Co. v. Santa Clara Lumber Co., 173 N. Y. 149, 65 N. E. 967 (both parties corporations). South Carolina. Campbell v. Virginia-Carolina Chemical Co., 68 S. O. 440, 47 S. E. 716 (corporation defendant). As to contract for corporate stock, see: Altoona Electrical, Engineering & Supply Co. v. Kittanning & F. C. St. Ry. Co., 126 Fed. 559 (plaintiff and defendant corporations); Treasurer v. Commercial Coal Min. Co., 23 Cal. 390 (corporation defendant); Northern Cent. R. Co. v. Walworth, 193 Pa. St. 207, 74 Am. St. Rep. 683, 44 Atl. 253 (plaintiff a corporation). 33 District of Columbia. Morrow v. Edwards, 20 App. Cas. 475. Illinois. Renwick v. Hall, 84 Ill. 162 (school district corporation). New Jersey. National Docks Ry. Co. v. Central Ry. Co. of New Jersey, 32 N. J. Eq. 755. New York. Clarke v. Brooklyn Bank, 1 Edw. Ch. 361. Wisconsin. Independent Order of Foresters v. United Order of Foresters, 94 Wis. 234, 68 N. W. 1011. But recognizing the rule stated in the text, under a constitutional grant of power to issue writs of injunction, among others, in its original jurisdiction the Supreme Court of Wisconsin entertained an information against railroad companies for an injunction against violations of charter detrimental to the public. AttorneyGeneral v. Stevens, 1 N. J. Eq. 369, 22 Am. Dec. 526 (suit to enjoin erection of bridge without authority); Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425. See also chapter on Quo Warranto, infra. V. 34 Elizabethtown Gas Light Co. v. Green, 49 N. J. Eq. 329, 24 Atl. 560; and see also Attorney-General Stevens, 1 N. J. Eq. 369, 22 Am. Dec. 526; Putnam v. Sweet, 1 Chand. (Wis.) 286, 2 Pin. 302. As to remedies of the public, see also 2942, infra. 35 Granted at instance of a reclamation district to prevent assumption of jurisdiction to restrain its officers from carrying out the command of a public statute. Reclamation Dist. No. 1500 v. Superior Court Sutter Co., 171 Cal. 672, 154 Pac. 845. Application by corporation entertained but writ denied on a presumption that respondent court would not proceed further. New Mexico-Colorado Coal & Mining. Co. v. Eighth Judicial Dist. Court of New Mexico, 21 N. M. 728, 158 Pac. 489. A de facto corporation may sue out the writ to prevent a receivership beyond the conferred jurisdiction of but a corporation cannot have prohibition to prevent exercise of jurisdiction over it in the wrong venue. A motion is the proper practice.36 So in mandamus the application has been entertained without question of the corporate capacity to bring the action.37 It has been expressly decided that a corporation is a "private party" entitled under a statute to institute quo warranto.38 Subsequent chapters will treat of mandamus and quo warranto, which are proper remedies against a corporation or for it.39 It suffices here to state that an information in the nature of quo warranto is the proper remedy, at the instance of the state, or of the attorney general on behalf of the state, to forfeit the charter of a corporation for misuser or nonuser of its franchises.40 It is also the proper remedy to oust a corporation from the exercise of powers not conferred upon it by its charter; 41 and it is the proper remedy to oust persons from the exercise of corporate powers, when they have not been legally incorporated.42 Scire facias will lie, either by or against a corporation, the court. Such corporation is "beneficially interested" (Laws 1895, p. 119, § 30). The corporate existence de jure of the relator cannot be questioned on such application. State v. Superior Court Spokane County, 15 Wash. 668, 37 L. R. A. 111, 55 Am. St. Rep. 907, 47 Pac. 31. Prohibition will lie against a court attempting to charge a corporate relator on service which was invalid. Pennsylvania R. Co. v. Rogers, 52 W. Va. 450, 62 L. R. A. 178, 44 S. E. 300. 36 Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157. 37 A corporate creditor was awarded a writ to compel payment of its claim by respondent treasurer. Portland Stone Ware Co. v. Taylor, 17 R. I. 33, 19 Atl. 1086. A corporate owner of abutting property was held to have a special interest to sustain application for the writ to compel making of a paving improvement, but the writ was denied on other grounds. Carey Salt Co. v. Hutchinson, 72 Kan. 99, 82 Pac. 721. 38 A public service corporation is "a private party" which under Stats. 3466, may be relator in quo warranto to test a franchise. State v. Minahan Bldg. Co., 141 Wis. 400, 123 N. W. 258. 39 Mandamus or actions in nature thereof, see chapter on Mandamus, infra. Quo warranto against corporation, see chapter on Quo Warranto, infra. 40 See chapter on Forfeiture, Dissolution and Winding Up, infra. But not to compel performance of a franchised public service according to its terms, which were being violated. Attorney General v. Salem, 103 Mass. 138 (public corporation operating waterworks). 41 Banking powers by an insurance company. People v. Utica Ins. Co., 15 Johns. (N. Y.) 353, 358, 8 Am. Dec. 243; banking powers by a railroad company, People v. River Raisin & L. E. R. Co., 12 Mich. 389, 86 Am. Dec. 64. See chapter on Ultra Vires, supra. 42 See chapter on Quo Warranto, infra. In New York a statutory remedy takes the place of scire facias, quo warranto, and information in nature of quo warranto, but the distinction [§ 2937 in any case in which it will lie by or against a natural person, unless there is some restriction in its charter. Thus, it may be brought by or against a corporation to revive a judgment. At common law, scire facias was the proper remedy against a corporation to enforce a forfeiture of its charter, when there was a legally existing body capable of acting, but which had been guilty of an abuse of its powers, and it is still so in some jurisdictions. In most jurisdictions, however, this remedy has given place to the remedy by information in the nature of the writ of quo warranto.43 46 In the absence of any other adequate legal remedy, mandamus will lie against a corporation to compel it to perform a specific duty imposed upon it by its charter or by the general law for the benefit of the public. Thus, mandamus will lie against a railroad company to compel it to restore a public highway, if it is under a duty to do so, or to compel it to operate its road as required by law; to compel a canal company to keep its canal in navigable condition; 47 to compel a railroad company to deliver to a particular elevator whatever grain in bulk may be consigned to it; 48 to compel a waterworks company to erect necessary fire plugs for the purpose of furnishing a sufficient supply of water to extinguish fires; 49 or to compel a corporation to furnish to a tax officer or court, as required by law, a list of its stockholders for purposes of taxation.50 Mandamus is also a between action against a corporation to annul it and one against individuals usurping the corporate attributes remains. People v. Ravenswood, H. C. & W. Turnpike & Bridge Co., 20 Barb. (N. Y.) 518, per Cowles, J. 43 See chapter on Forfeiture, Dissolution and Winding Up, infra. 44 United States. Northern Pac. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. Ed. 1092. Georgia. Savannah & O. Canal Co. v. Shuman, 91 Ga. 400, 44 Am. St. Rep. 43, 17 S. E. 937. Missouri. State v. Hannibal & St. J. R. Co., 86 Mo. 13. New York. People v. New York Cent. & H. River R. Co., 28 Hun 543. Pennsylvania. Com. v. New York, P. & O. R. Co., 138 Pa. St. 58, 20 Atl. 951; Com. v. Phoenix Iron Co., 105 Pa. St. 111, 51 Am. Rep. 184. England. Rex v. Nottingham Old Water Works Co., 6 Adol & E. 355; Norris v. Irish Land Co., 8 El. & Bl. 512. 45 State v. Hannibal & St. J. R. Co., 86 Mo. 13; Com. v. New York, P. & O. R. Co., 138 Pa. St. 58, 20 Atl. 951. 46 Chicago & N. W. R. Co. v. Crane, 113 U. S. 424, 28 L. Ed. 1064; Union Pac. R. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428; State v. Hartford & N. H. R. Co., 29 Conn. 538. Compare Northern Pac. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. Ed. 1092. 47 Savannah & O. Canal Co. v. Shuman, 91 Ga. 400, 44 Am. St. Rep. 43, 17 S. E. 937. 48 Chicago & N. W. R. Co. v. People, 56 Ill. 365, 8 Am. Rep. 690. 49 Easton v. Lehigh Water Co., 97 Pa. St. 554. 50 Firemen's Ins. Co. v. Baltimore, 23 Md. 297. |