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Page:Harvard Law Review Volume 2.djvu/353

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[These cases are selected from the current Eng^Iish and American decisions not yet reg^arly reported, for the purpose of givint^ the latest and most prog-ressive work of the courts. No pains are spared in selecUnira//the cases, comparatively few in number, which disclose the general prog- res<« and tendencies of the law. When such cases are particularly suggestive, comments and refer- ences are added, if practicable.]

Conspiracy — Restraint of Trade — Combination to keep up Freight Rates and exclude Rival Traders. — An association of a number of ship- owners was formed to obtain a monopoly of the homeward tea trade, and keep up the rate of freight, by offering a rebate on freight to all merchants shipping exclusively by the association vessels, ffe/i^, that as the association was formed with the view of keeping the trade in their own hands, and not with a malicious intention of ruining the trade of other shipH>wners^ or through any personal ill- will towards them, it was not an agreemient in restraint of trade, and was not in unlawful conspiracy. The association did not pass ** the line which separates the reasonable and legitimate selfishness of traders from wrong and malice." Mogul SUaniship Co. v. McGregor ^ Gow, 4b Co., L. R. 21 Q. B. 544 (Eng.). See Marshall v. Penn, R, B. Co., 92 Pa. St. 150, accord. Constitutional Law — Due Process of Law — Appointment of Re- ceiver. — An act which provides that, upon the dissolution of a corporation by legislative action, the attorney.general shall bring suit to wind up its affoirs^ and may, upon application to the court, procure by an ex parte order the appoint- ment of a receiver who shall take possession of the property and convert it into money, ascertain and deteimine the liabilities of the corporation, and distribute the assets, is unconstitutional, because it amounts to a taking of the property without due process of law ftom those in whom it would legally vest in trust under the laws of the State; viz., the managers and directors at the time of dissolution. « The court has, by virtue of its general jurisdiction over trusts^ authority to appoint to a vacant trusteeship, and, perhaps, for cause, to remove fraudulent, dishonest, or incompetent trustees, and appoint others to perform the duties of the trust, in order to avoid a failure thereof; but we know of no authority for a court to appoint a receiver of property vested in trustees, without cause, and without notice to them, or opportunity afforded to defend their title and possession." People V. O'Brien, 18 N. E. Rep. 692 (N. Y.).


TRACTs — Effect of Rjteal of Charter on Corporate Property. — The Broadway Surface Railroad Company was duly incorporated unde'r the laws of New York State, and procured the necessary grants from the city of New York to lay tracks and to run cars over Broadway. It then, as it was permitted by statute, mortgaged its property as security for bonds issued by it, and entered into contracts with connecting lines. In 1886 statutes were passed dissolving the company, and directing the grants made by the city to be sold and the proceeds to be paid to the city, wholly ignoring the rights of stockholders, mortgagees, and contractors. This legislation was held unconstitutional, except that portion which operated to dissolve the corporation.

The questions which arose were, first, whether the dissolution of the corpora- tion necessarily destroyed its property, so that the State could do what it pleased with what had been the corporate franchises^ without violating the constitt^tional provision against taking property without due process of law; secondly, what was the effect upon the charter of a reservation of power by the State to amend or repeal laws and charters.

(1.) It was said that the repeal of the charter, under a power reserved by the State, although destroying the corporate life did not destroy the corporate prop- erty, except in so far as such property is dependent upon the existence of the corporation for its lawful enjoyment: but that the dissolution of a corporation has no "other operation upon its contracts or property rights than the death of a natural person upon his." As it was said in Fletcher v. Peck^ 6 Cranch, 1 35, ** When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest these rights.*' There-