been laid before the application for the injunction.' And in such case, where the complainant's franchise of carrying oil is not exclusive, such acts are not in contravention thereof, especially where it appears that the defendants intend to transport their own oil only. Irreparable injury should be shown to justify the granting of the injunction.* 15. By the company to restrain transfer of railroad grant lands. An injunction will not be granted to restrain the doing of an act by the executive department of a state in its official capacity, whether it proceeds from error of judgment or misapprehension of duty. This rule applies both to merely ministerial acts, and to those involving the exercise of a discretion, and whether it arises out of the constitution or a legislative enactment. Thus where it is claimed that railroad grant lands, the legal title to which is in the state, equitably belong to the plaintiff, upon the payment of certain claims for construction, and that the governor in his official capacity is about to sell and convey the same, such transfer will not be restrained. Nor in such case will the court retain jurisdiction as to the other defendants, contractors for the construction of a railroad over such granted lands, against whom the plaintiff has no cause of action, but seeks auxiliary relief (an accounting as to their claims for such construction) in aid of his demand against the state, upon which the court can make no adjudication." 16. By railway receiver to protect his rights as such.--When a receiver has been appointed for an insolvent railroad corporation, and an order of sequestration is made, placing the road, property, rights and credits of the company in his hands, subject to the court, it is for the benefit of all concerned, and one or more individual creditors will not thereafter be permitted to enforce their judgments or prosecute judicial proceedings against the company, or against individual corporators thereof, but will be restrained by injunction from so doing, on proper application 1 United N. J. R. R. & Canal Co. v. Standard Oil Co., 33 N. J. Ch. 123; S. C. 1 Am. & Eng. R. R. Cas. 33; Central R. R. Co. of N. J. v. Same, Il. 127, S. C. 1 Am. & Eng. R. R. Cas. 36. 2 ibid. & Ibid. Western R. R. Co. of Minn. v. De Graff, 27 Minn. 1; S. C. 6 N. W. W. R. R. Co. v. DeGraff, supra. Ch. 201, Sp. Laws of 1877, of Minnesota, do not authorize such retention of the action: Ibid. of such receiver, to the end that all the assets of the company shall be subjected and distributed by the court to the payment of the claims, pro rata, of all creditors alike, subject only to such preferences, priority or liens as the court shall find to be just and right, if any such there be.1 17. By tax payer to prevent illegal issue of bonds to railroad company. Where the officers of a county, or other municipal corporation, are about to illegally create a liability, as for instance the making of an unauthorized subscription to the capital stock of a railroad, or other private corporation, or are about to issue bonds of the municipality to pay such unauthorized subscription, under such semblance of authority as may result in giving such bonds validity in the hands of innocent holders, equity will interpose and prevent it by injunction, on application of a tax payer of such municipality." 18. Against directory to prevent breach of trust.-Railroad directors are trustees in law for the incorporators or stockholders, and as such will be enjoined, at the suit of a stockholder or stockholders, from committing an intended breach or abuse of their trust. Thus where a newly elected directory are intending to get control of a judgment existing in favor of the company, with the design of improperly using the proceeds thereof, or of improper use of the judgment itself, equity, upon a proper case made, will interfere by injunction and prevent it.* 1 Rankine v. Elliott, 16 N. Y. 377. 2 Allison and others v. The Louisville, Harrod's Creek & Westport Ry. Co., 9 Bush (Ky.), 247; Daviess Co. Ct. r. Howard, 13 Bush, 101; Jackson Co. v. Brush, 77 Ill. 59; Wright v. Bishop, 88 Ill. 302, 21 Am. Ry. Rep. 301; Wellsborough v. N. Y. & Can. R. R. Co., 76 N. Y. 182; Lawson v. Schnellen, 33 Wis. 288; Wagner v. Meety, 69 Mo. 150; Concord v. Portsmouth Sav. Bank, 92 U. S. 625; Redd v. Henry Co., 31 Gratt. 695; Delaware granted unless the municipality has a valid defense to them: Wilkinson v. City of Peru, 61 Ind. 1. The court will, in a proper case, decree the cancellation of bonds illegally issued: Springport v. Teutonia Sav. Bank, 75 N. Y. 397. And if illegal in the first place, a curative act of the legislature will not remedy the illegality, if passed after the inception of suit by such tax payer: Allison v. L., H. C. & W. Ry. Co., supra. 3 Fisher v. Concord R. R. Co., 50 Co. v. McClintock, 51 Ind. 325. The N. H. 200; Northern R. R. Co. v. company is not a necessary party: Jager r. Doherty, 61 Ind. 528; Bittinger v. Bell, 65 Ind. 445. After the bonds are issued, no injunction will be Concord R. R. Co., Id. 175. Fisher v. Concord R. R. Co., 50 N. H. 200; Northern R. R. Co. v. Concord R. R. Co., Id. 175. 1. When a cause may be removed on account of citizenship. -A suit against a railroad corporation, or other corporation, brought in a different state than that wherein the corporation is created, by a citizen or citizens of the state in which the suit is brought, may, if the amount in controversy is of the proper value (that is, if of over five hundred dollars, exclusive of costs), be re- moved by such railroad corporation to the circuit court of the 11 U. S. Stat. at Large, 78; 1 Bright- ley's Dig. U. S. Laws, 128, Sec. 19; Hatch v. The Chi., Rock Isl'd & Pacific R. R. Co., 6 Blatch. C. C. R., 105; S. C. 1 With's Corp. Cas. 79; Case of The Sewing Machine Companies, 18 Wall. 553, 575. The proviso of the 24th section of the act for the creation and regulation of incorporated compa- nies in Ohio, as amended March 19, 1869 (66 Ohio L. 32), so far as it pro- vides that leasing, purchasing or op- erating a railroad in that state, by a railroad company of another state, States courts, was held unconstitu- tional in Baltimore & Ohio R. R. Co. v. Cary, 28 Ohio St. 208, 14 Am. Ry. Rep. 97. But the contrary is the rul- ing in Virginia: Same v. Wightman, 29 Gratt. 431, 17 Am. Ry. Rep. 351. Joint stock companies in New York, possessing the essential attributes of corporations, are, like other corpora- tions, citizens of the state, and may sue and be sued in the Federal courts, and exercise the right of removal like other corporations: Fargo v. Louis- ville, N. A. & C. Ry. Co., 6 Fed. Repr. Such removal is effected by the defendant by filing in the state court in said cause, at the time of entering his appearance therein, a petition for the removal of the cause into the next circuit court of the United States for that district, and by of fering security for filing in said United States court, on the first day of the next term thereof, copies of all the files and records of such suit.' If the matter in controversy be a money demand, then the sum demanded by the writ, or amount of damages claimed, is the amount in controversy; but if the action is for property, then the value of the thing in controversy is to be made apparent by the affidavit of the defendant, and such other proof, if any, as the court in its discretion may require. But to sustain the removal, not only the citizenship of each party, plaintiff and defendant, must be of the description required by the act of congress, but also each person of the parties, plaintiff and defendant, if more than one there be, unless the objectionable ones are mere nominal defendants; or if the suit, "so far as it relates to the alien defendant, or non-resident defendant," is instituted and prosecuted for the purpose of restraining or enjoining such defendant; or if the suit is one which, so far as it respects such non-resident or alien defendant, can be finally determined without the presence of the other defendant or defendants as parties thereto; then such alien or non-resident defendant may remove the same, so far as regards his or her self, into the circuit court of the United States, at any time before the final hearing or trial of the cause, by filing in the state court a petition setting forth the existence of these or one of these facts, and such other facts as will bring the application within the other provisions of the statute in reference to the removal of causes on acBut such removal as to count of the citizenship of the parties. 1 1 Brightley's Dig. U. S. Laws, Vol. 1, 128, Sec. 19 and notes. 2 Hatch v. Chi., Rock Island & Pacific R. R. Co., 1 Withrow's Corp. Cases, 79; Same case, 6 Blatch. C. C. R. 105; Case of the Sewing Machine Companies, 18 Wall. 53, 575; Brightley's Dig. U. S. Laws, Vol. 1, p. 128, Sec. 19. Blodget, 4 McLean, 363; 3 Wilson v. Hubbard v. Northern R. R. Co., 25 Vt. 715; Welch v. Tennent, 4 Cal. 203; Walsh v. Memphis, C. & N. W. R. R. Hatch v. The Chicago, Rock Island & Pacific R. R. Co., 6 Blatch. C. C. R. 105; S. C. 1st With's Corporation Cas. 79; Hazard v. Durant, 9 R. I. 602. Case of the Sewing Machine Companies, 18 Wall. 553, 578. the non-resident or alien defendant or defendants, will not prejudice or take away the right of the plaintiff to proceed, at the same time, in the state court, with the suit, as against the remaining defendant or defendants, if he shall elect so to do.1 When corporations of different states have become consolidated, and one of the constituent corporations is sued in the courts of the state creating it, by its changed name, by a citizen or corporation of the same state, another of the constituent corporations, citizen of another state, can not remove the cause to the federal courts. If a foreign corporation be adopted by a state, it then becomes a domestic corporation. So, a consolidated corporation, chartered by several states, is considered a domestic corporation of each, in questions of removal." If a corporation be a party, it is in law a person, and it is not now required, as formerly, that its members individually shall be of the capacity to sue or be sued in the federal courts.* The joinder of an officer of the company, who is a citizen of the state wherein the suit is brought, as a defendant in such suit, will not prevent the removal into the United States court, if no claim or relief be claimed as against such officer personally, or other than that which is claimed against the company. such case, the officer will be regarded and treated by the court, on the application for removal, as merely a nominal defendant.' In A suit against such corporation by its corporate name, is regarded in law as a suit against citizens of the state wherein and by which it is created. The legal presumption is that its members are citizens of such state. No averment or evidence is admissible to the contrary; and it follows, therefore, that for the jurisdictional purposes of the United States circuit courts, these suits, so far as they are suits against the company, are suits against citizens of the state wherein, and by which, the company is created. Nothing done by the company in reference to the place or manner of transacting its business, and not even a statute of 1 Case of the Sewing Machine Companies, 18 Wall. 553, 578, 579; 14 U. S. Stat. at Large, 306. 2 Chicago & Western Ind. R. R. Co. v. L. S. & M. S. Ry. Co., 5 Fed. Repr. 19; S. C. 1 Am. and Eng. R. R. Cas. 627. 3 Uphoff v. Chicago, St. L. & N. O. R. R. Co., 5 Fed. Repr. 545; S. C. 1 Case of the Sewing Machine Companies, 18 Wall. 553, 574, 575. 5 Hatch v. The Chi., Rock Isl'd & Pacific R. R. Co., 6 Blatch. C. C. R. 105; S. C. 1 With's Corp. Cas. 79. |