15 Fla. 690 | Fla. | 1876
delivered the opinion of the Court.
.The appellants in .this case, looking to the assignment of ■errors and . the. parties;-named:.upon- the,; .calendar,, . are the
The plaintiff, the State of . Florida,;has in-possession one thousand bonds of one thousand dollars each, bearing the seal of the Florida Central Railroad Company,: of-the following tenor and date: ■
”“No; J — -, $1,000,’ United' States óf America, 'State’of Florida. Bond of the' Florida' Central Railroad Company.
“ Know all mén by-thesé pi’eisehts, ’that* the' Florida Cé'xitral Raih’oad Company acknowledges itself indebted to the State of Florida in' the stun-' of one thousand dollars for value received, which sum the Florida- Central Railroad •Cóítípany' promises and agrees to pay totbe:State-of Florida on the first day of January A.’ D. nineteen ‘húndred,’ in the city of Néw York, With interest thereon’’ at the -rate- of-eight per centum per annum, payable semi-annually on the first days of Jxxly and-January in each-year, on the presentation and ' delivery óf' the proper coupons heréuntó ’attached.” This bond-is-one of'a s'eriesof 1-iketexxoxy limited-to sixteen thousand dollars per milé; ’ issued in accordance with' an act of the Legislature of the State of Florida-,' approved January 28th, eighteen hundred and seventy, ’-entitled’an aet to alter hud amend “ an -act entitled an act to. perfect’ the -public worksof ihe’State,” approved’ June YJth,'eighteen hiiindred and sixty-nine, and'given in exehange for bonds issued by the State ■ ofFloxida* to: aid - the 'Jacksonville,. Pensacola and Mobile1 Railroad Company tomompléfcep equip ándmaita,tain- its road for án Uqual axnountpin accordance with said act.
“ In witness' whereof* the ■ said • *”company: has ’ caused? this bond'- to he éigfied - and- attest eddni its’¡behalf byits*Presidenf, and the common seabaffixedat itS'ófíicein -A'--J.¡--gtHig'first day of January^ in1 thé’-¡year 18JO';-/--.:íx?-eí. oik xnvásh?
’-'“■Gaoi'W.''SiVEPSdiir,;Pffesid!enf?n
“ H. H. Thoxmepson, Treasurer.” .. -•■E ..yumy.vo:>
This action was instituted by the State' in’March, 1872, to subject the property arid franchises of this company to sale, .the State'alleging in ' its1 amended complaint*, by which defendant was riiade a party,1 that the company had failed to __pay any of the interest due upon *the bonds.'* The defendant in argument denies that the allegations* óf the-complaint *‘set up an execution of these bonds by the company, and affirms that such allegation is necessary, to sustain . the decree. "Without stating in detail all of the allegations in reference to this subject, scattered as they are through a complaint of twenty-eight printed pages, we will say that from a careful .and accurate examination of - all the statements of the complaint upon this subject, there is such an allegation, and that the complaint also states, substantially; a sale of the State bonds which were issued-1 in exchange for ' the bonds of this company.- . .
■ The plaintiff claims, that .upon. this, ¡default it* was lawful for the State, through the Governor, to enter upon and take possession Of the, property and¡ franchises of .the company,, to sell the same and apply the proceeds in accordance with the provisions of. the statutes under .which ¡ it alleges the bonds were issued; and that,-this being a mortgage contract the remedy in equity ¡attaching to such; equitable relations was effective to. decree a ¡sale, and* an application of the proceeds to the holders of the*bonds of the. State.- • •*• • .. ...
- To this complaint the defendant in its< original ¡ answer replied, not. denying that the company was: ¡authorized to; issue the bonds, :or that they were; delivered to the: Governor, of the State, and admitting the power of the company ¡Under the law to execute its: bond; but'after setting up the. facts'connected with the exchange, alleging that the exchange was made without its sanction or assent, the company, while not denying that it adopted these bonds as bonds of the company, alleged that when it did so it was not aware of
There was subsequently an amended complaint filed ¡by the plaintiff, ; but. as, it;,;was dismissed-,as, to , -thi^idefendant, its matter is .not-, material., -On .the' ,26th-qf.May,--A. Fh 1875, within,two months of three ;years:.afterJfie filing of the original answer; .and .after a,Nearing.pppu-aij,appeal in this court, there was ¡.fileJ;.- what.,,pnrpQrtqil-,,rtor.-be an amendej answer pf the. Florida Central Company,fin which iUallegecl -that the resol ntipu.of the stockholders apthprizing the issu.e.pfthe, one million .of bonds,was--rescin,dpdNy a,resql.ution of, its-directors., qn .the ^Ist-qf ¡18jTGr.j;. ibis resolution, wlficlr is made, an- e^ibit, -is tq the effgct-that the bonfis,- signed,. l3yr;,G..tTi;;S\vepsqn aFj^resi<3ent,Nefpre..that fggulj} .l¿9ih6!nse.F:.tp;:carry.,'iqut.- thp,„ inipntipn of their -Fftg -í&P&Nthe.s tophi .............."
These pleadings show the issues between the parties. After evidence, there was a decree for the sale of the road, and from this decree this appeal by the company is taken.
An analysis of these pleadings will show that there are four general questions presented for consideration. The evidence applicable to each of these questions will be stated as each question is considered.
First. Did the company have the legal power and authority to issue these bpnds held by the State, and if it did have such power, were such bonds to be a first mortgage, with
Second. If such power existed, were there such circumstances connected with the issue, delivery and exchange as excuse the company from their payment ?
Third. Is there a remedy in equity as well as the particular remedy provided by the statutes ?
Fourth. Are the bonds now held in such manner as to vest a right of action in the State to subject the road and property of the company to sale ?
To the first question : This company is a private corporation, and all power which it possesses or can exercise must be derived from its charter, the amendments thereof, or from some action of the legislative department of the government granting such power, either in express words or by reasonable and necessary implication ; and it is proper, in fixing the powers of a corporation, as to the character of the contracts it may make (the question here) to regard the general scope and purpose of the grant by the Legislature, and not to disregard entirely reasonable implications resulting from attending circumstances. This we regard as the rule established by a fair construction of the English and American cases — when the question is as to its power to execute a bond, mortgage or contract of like character, with third parties. Where the charter proposes to delegate a sovereign power to the corporation, the rule may be more strict on account of the difference in the nature of such power and a power to mortgage its own property and franchises for its own purposes. 1 Red. on Rail., 5th Ed., 253, and cases cited; Price on Ultra Vires, 87, 90, 91, 93, 140, 141; 3 Rob., 513; 3 Md., 305 ; 2 Dutcher, 221; 1 H. and M., 786 ; 1 Watts, 385; 6 Humph., 515 ; 11 Ala., 437; 28 Ala., 321; S. C. 33, L. J., Ch. 93.
The Pennsylvania cases upon this question which have been called to our attention seem to be inconsistent with themselves, and, therefore, one or the other of the inconsistent
The Florida Central Eailroad Company was incorporated-in 1868, and was given all the powers and franchises before that time granted to the Florida, A. and G. C. Eailroad, by an act approved January 7, 1853, with power to exercise the said powers and franchises so far as they appertained to the rail/road constructed from the city of Jacksonville, i/n Duval county, to Lake City, in Columbia county. In addition to these powers, the act of 1868 gives it the express power to hold lands and tenements, goods and chattels that may be useful for the purposes of the road, and the same to grant, mortgage and dispose of. The fourteenth section of an act entitled “ An act to perfect the public works of the State,” approved June 24, 1869, authorized the Florida Central Company and the several companies owning the line of road between Quincy and Jacksonville to consolidate with the Jacksonville, Pensacola and Mobile Company, which was a company authorized to build a road from Quincy to Mobile. In the event of such consolidation, it authorized the Jacksonville, Pensacola and Mobile Company to raise money by way of mortgage of its property and franchises. It also authoi’ized agreements looking to a common manage
Under this act the J. P. & M. Company was authorized to exchange bonds with the State to the extent of fourteen thousand dollars per mile, the State to have a statutory lien and mortgage upon its property and franchises to secure the payment of the company bonds, with power in the Governor, upon default in payment of principal or interest for sixty days, to take possession of and sell the road ; and this right was granted to “ each ” of the roads owning the line, by the latter portion of the section above quoted. While this section gave the Florida Central Company the same right as the J. P. & M. Company to issue its own bond or mortgage, still by an examination of the act it will be seen that it was deficient in that no method was provided by which the mortgage could be used for the great end and object of this legislation, which was the extension of this line of road to Mobile. No action was taken by the Florida Central Company under this act, and perhaps for the reason stated an act was passed on the 28th of January, 1870, amending the act of June 24th, 1869. This act was entitled “ an act to alter and amend the act of J une 24th, 1869.” This act altered and amended the 4th, 9th, 11th, 12th and 20th sections of the previous act, leaving the 14dh section which had given the Florida Central Company the same rights as were granted to the J. P.db M. Compcmy in force, and also the 10th section of the act which authorized the J. P. db M. Company to deliver to the Governor of
The sections of the act of 1869, thus changed and altered, embraced the 9th section, the section authorizing State aid to the amount of fourteen thousand dollars per mile to be given in exchange-for bonds to be delivered under the 10th section, as well as the section (the 11th section) defining the lien which would attach to the company bond in the hands of the State. In lieu of these sections the following provisions were substituted: Under the 9th section as altered the Governor of the State was directed to deliver to the President of the J. P. & M. E. E. Company, in order to aid the construction of its road westward from Quincy, '££ coupon bonds of the State to an amount equal to sixteen thousand dollars per mile for the whole line of road and length of railroad owned by or belonging to said Jacksonville, Pensacola and Mobile.Railroad Company, in exchcmge for first mortgage bonds of said railroad company, of the denomination of one thousand dollars, when the President thereof shall certify upon his oath that the road or parts of road for which he asks for an exchange of bonds is completed, and is in good running order. The said bonds shall be of the denomination of one thousand dollars, signed by the Governor, countersigned by the Treasurer, sealed with the great seal of the State. They shall bear eight per cent, interest, payable semi-annually, and shall be payable to bearer. They shall be dated on the first day of January, A. D. 1S70, and shall be due thirty years thereafter, and principal and interest shall be payable at such place in the city of New York as the Governor shall designate. The coupons for interest shall be payable to bearer, and shall be authenticated by the written or engraved signature of the Treasurer; Provided, however, that whenever the Jacksonville, Pensacola and Mobile Eailroad Company shall or may determine to pay the interest in gold, for or upon .their bonds or the bonds designated in
The tenth section remained as in the original act.
The eleventh section was altered and amended so as to read as follows: “ To secure the principal and interest of the said company bonds, the State of Florida shall, by this act, have a statutory lien, which shall be valid to all intents and purposes as a first mortgage duly registered on the part of the road for which the State bonds were delivered, and on all the property of the company, real and personal, appertaining to that part of the line which it may now have or may hereafter acquire, together with all the rights, franchises and powers thereto belonging, and in case of failure of the company to pay either the principal or interest of its bonds or any part thereof for twelve months after the same shall become due, it shall be lawful for the Governor to enter upon and take possession of said property and franchises, and sell the same at public auction, after having first given ninety days’ notice by public advertisement in at least one newspaper published in each of the following places : The city of New York in the State of New York, the city of Savannah in the State of Georgia, and the city of Tallahassee in the State of Florida, for lawful money of the United States, and for nothing else, except that the State for its own protection may become the purchaser at said sale, and may pay on said purchase any evidences of indebtedness the State may hold against said roads, which purchase money or said evidences of indebtedness shall be paid on the day of sale into the treasury of this State, or .within ten days thereafter; and all moneys arising from said sale and paid
With this history of this legislation and this statement of
It is plain and clear from the letter of this act as amended that unless the exchange provided for under this section is an exchange of bonds on a line of road other than that ovmed by the Jacksonville, Pensacola and Mobile Company, that it is mere surplusage, useless unnecessary and of no effect. The ninth section of the act as amended directed the Governor to exchange bonds with the President of the Jacksonville, Pensacola and Mobile Company for the whole line of road and length of railroad owned by or belonging to the Jacksonville, Pensacola and Mobile Railroad Company. Now the exchange thus authorized with the Jacksonville, Pensacola and Mobile Company embraced, as is shown by the pleadings, the line of road extending from Quincy to Lake City; and the other part of the road between Quincy and Jacksonville, to-wit: from Lake City to Jack
The Jacksonville, Pensacola and Mobile Railroad Company owned the line of road from Quincy to Lake City,where it connected with the road of the Florida Central Company, whose road extended from Lake City to Jacksonville, and the Florida Central Company was given the opportunity, by this legislative action, of aiding in the extension of this connected line (from Lake City to Quincy) to Mobile, thus bringing its own road and the road of the Jacksonville, Pensacola and Mobile Railroad Company in connection with the roads radiating from that point.
This legisation, therefore, gives this company authority to issue “ first mortgage bonds;” and the next question is, whether it authorized a bond and accompanying mortgage to be executed in a formal manner by the company, or Avhether the bond which, under this statute, is called “ a first mortgage bond,” and to which the statutory lien and remedy attaches, is the bond referred to.
This section of the statute does not, in terms, authorize a bond and a separate mortgage to secure its payment. It, in terms, authorizes a “first mortgage bond.” The terms, “ first mortgage,” qualify the term “ bond,” and the necessary result is that it .means a bond that is to be a first mortgage Avithout such additional formalities of executing a
Now, the bond which the Jacksonville, Pensacola and Mobile Company was authorized to issue was a simple bond, which was, under the statute, to be a “ first mortgage bond,” with a lien of the character defined in the act. No additional mortgage was to be executed to make it effective. In the section of the act making this amendment, the bonds, which the Jacksonville, Pensacola and Mobile Company were authorized to issue, were denominated “ first mortgage bonds,” the same terms used when this authority is granted the Florida Central Railroad Company. The bond which the Jacksonville, Pensacola and Mobile Company was to issue was a simple bond under the tenth section of the act, and by other sections of the act it is declared a “ first mortgage bond,” with the statutory lien and remedy incident thereto. In addition to this, the section authorizing the Governor to enter upon, take possession of and sell the property to which the lien attaches, provides that the State, at such sale, “ for its own protection, may become the purchaser at such sale, and may pay on said purchase any evidences of indebtedness the State may hold against said roads? If it was to have this lien only as to one road, the use of the term roads, instead of road, cannot be explained. If it has it as to two, it is all consistent, and if there is more than one, the other must be the Florida Central Railroad, as it and the Jacksonville, Pensacola and Mobile Railroad are the only two to which the term can apply, as they are the only roads which are authorized, under the act as altered and amended, to issue “ first mortgage bonds.” The necessary conclusion, we think, is that the first mortgage bond intended was the bond authorized by the tenth section of the original act, and to it in the hands of the State attached the lien and remedial rights provided in the act for its enforcement.
We now reach the second general question. Were there such circumstances connected with the issue, delivery and exchange of these bonds as excuse the company from their payment % The allegation in the amended answer of this company to the effect that a resolution was passed rescinding the resolution which authorized the issue of the bonds signed by Geo. W. Swepson, as President, (the bonds now sued upon), and directing their destruction, was passed as stated, but the resolution was never carried out and the bonds were not destroyed. It is hardly necessary to say that a debtor cannot destroy his obligation by resolutions of this character unexecuted. It is true as alleged in the amended answer, that Houstoun returned the bonds of the State to the State, after their first issue, and received the company bonds in return ; but it is not true that the bonds, with any assent of the State or of Houstoun were in his hands, to be returned for cancellation, or that there was any agreement
On the 13th of May, A. I). 1871, after the company had failed to destroy its bonds as its directory had resolved, and after Coddington had made the exchange with the State, with the assent of Houstoun and Littlefield, Mr. Houstoun offered the following resolution at a meeting of the stockholders :
“ Besol/oed, That Edward Houstoun do place'the bonds referred to in the preamble and resolutions of the stockholders, adopted June 20th, 1870, in the hands of S. W. Hopkins & Co., for the purpose mentioned in said resolutions, subject
The resolution was adopted. The bonds here referred to are tbe bonds now held by the State. So far as the exchange of these bonds by the company is concerned, here is its express authority given for it, and that must be an end of this matter.
We now reach the third general question. Is there a remedy in equity as well as through the exercise of the .power of sale given the trustee under the statute ?
It is insisted that these statutes give a. new right and prescribe a particular remedy not known to the common law, and that such remedy must be strictly pursued, and is exclusive of every other.
, The power of this corporation to make this particular first mortgage bond, and by its act create the trust, must result from legislative grant,, as tbe corporation has not, like an individual, -a general power to contract except where there is .a limitation. But-when a power granted by the Legislature .to a corporation is exercised, and it results in a contract which the statute makes a. mortgage, and to which it attaches a trust, it is as if the same power was- exercised by an -individual so-far ,as,the ,mere-áqt of making the-contract is -concerned. It is .true that neither a court oí equity nor law •can, :as a geñéral rule; aid: -the defective execution of a statutory power, because the mannner of the exercise -ofi-the .power -is-a- matter-of public policy-.;, -but if a:contract, is made -and-executed:by virtúó-of a statute, (the1 only way.in which corporation.can ,contraet:),iahd that-, contract is,a;,mortgage or. in-vol.ves ;:a: .trnst,-;there'isa.a.:!relatiqn-. and? right ’created .iwhich'is'-welhknowh;to.equity...'; ';o o-
If there is a trust and mortgage,;and.e.onn:eeted, with,there in: order .to! their- dnfeenfOTcemehtithere.is.-ja statu tory-power ■of sale^can-notoía -courtY of .equity at-'the suit of itbeafrustee
“ When a statute creates a new right without prescribing a remedy, the common law will furnish an adequate remedy to give effect to the statute right. But when a statute has created a new right, and has also prescribed a remedy for the enjoyment of the right, he who claims the right must pursue the statute remedy.
“ In the case before us the right claimed by the plaintiff to receive the treble damages is given by the statute which
“But he wholly neglected his remedy. The. defendant ■not being able to pay, the plaintiff did not dispose of him nor retain the body by giving security. The defendant’was .afterwards lawfully discharged, and the plaintiff has now no remedy.”
Now here was certainly-a new right and new penalties.. If the right is new, then as remarked by Chief Justice Parsons, “ the common law will furnish an adequate remedy to give effect to the statute right.” But if the rights and relations created are known, then there will be known remedies. We think that the power of a court of equity attaches in this-case and that - the remedy prescribed by the statute is. not exclusive.
The court. of equity, however, should follow the law giving the right in its decree as -to time of sale and appropriation of trust funds, and .we think the franchise tobe a corporation will pass,-as it is covered by-the lien as defined 'by.-the statute. 2 Chand. 103 ; 1 Wis. 432 ; 55 Penn. State, 204 ; 8 Ala. 694 ; 15 Texas, 269.
.In this .case equities were claimed’ by the trustees of the-,i Internal Improvement fund by which they insisted they , had rights paramount" to those of . the State or the' bondholders, , and in.most cases of thisi.character-there &fe ¡differences to '-.be settled which necessarily.call into action'the plastic and extensive powers of a court of equity in the matter-of-mortgage^ .a.nd trusts,. ;This is a-.tr.nst‘Coiijffed-with a'mortgage-- and power, of sale. 3 John. Ch'y 344 : 2 Met. 252.
Having, determined. that there was.'power-in the Company under the statntes to issue? these bdn'dsj and having détér
•; - The- Florida Central-'Company-'..ihsists^that.the" State i. bonds,; - delivered' -.to Coddington; : by. the Governor ' for its ;bonds have not ,been sold, , and .'that, said bonds gre" about to. ...Lqreturned -to the'.State, ,:and:the bonds ofthb company returned to,'it,?.. ■ iTMs:i&la. mátérialussue inVolvihgWhonsideratipn.of.the évidencej-rand-.wéiprcic'eédtoi'Mamihhall of it ,having reference tothe subject::. * : k.h; v. •
Harrison Reed, who was Governor of the State at the time of the exchange, says little that has any bearing upon the subject. ITe states that about the time of the exchange he was given a draft of $227,000 by the President of the J. P. & M. Company npon S. W. Hopkins & Co. Upon the draft acceptance was waived, and no acceptance was shown. There was nothing but an unaccepted draft of Littlefield. This witness further says that Coddington was the agent of the State to see that this draft was paid from the proceeds of sale of the one million of bonds, but no contract pledging the bonds or their proceeds in that way for this sum is shown upon the part of any person. This witness states further that the draft was never paid, and no report was ever made to him as to the disposition of the bonds or thew proceeds. This witness mentions some receipt of Codding-ton given to him, but it is evident that the receipt referred to was a receipt given by Coddington to Houston, to which we will refer hereafter; If it was not this receipt, then its nature is not disclosed.
M. S. Littlefield’s testimony covers the matter of the issue of the bonds, and relates to the nature of contracts between himself, Houstoun and others, to which we hereafter refer as exhibits. He states that the stock he purchased of Houstoun was paid for about the 13th April, A. D. 1871, by S. W. Hopkins & Co., the fiscal agents of the J. P. & M. R. R. Company in New York and London. The witness then states that the J. P. & M. R. R. Company closed a contract with S. "W". Hopkins & Co. to sell the four millions of State bonds on the date of a letter in evidence, which is one of the exhibits hereafter referred to. That John Collinsoh, a civil éngineer and broker, residing in England, was the man with whom Messrs. Hopkins & Co “ contracted to sell ” said bonds for the J. P. & M. Co. That C. L. Chase went to
This testimony does not establish a sale of these bonds, nor does it show that any advances were made upon them. It shows that at the time of the offer to sell the four million to S. W. Hopkins & Co. the J. P. & M. Co. controlled only three million, and that certain agreements between this witness and the two parties, Houstoun and Sanderson, were to be carried out, and then the J. P. & M. Company might control the bonds. There is no evidence here ¿hat the contract to sell the one million bonds of this, company to any person was ever carried out, or that there was any sale or ■pledge of the bonds. The naked;declaration ofth e witness that Houstoun was paid by S. W. Hopkins .& Co., the financial agents of the J. P. &.M., Co., does not prove a sale of ■these particular bonds., They had other securities of the J. P. & M. Co. in their hands, and Resides, .Littlefield, as we shall presently see,, qwqars positively that these bonds are not sold... So far, therefore,, as Littlefielcl’aiestimony is concerned, it does not show that these ,bonds are,,now in the -hands of a purchaser, pr that they are held as security-for any advances.• ■ - ,
- We come now to an examination of the exhibits which the State r.elies upon. ■ Plaintiff claims that exhibits H,.I, X, L, M, and N, have an important bearing on this,question, Ex- - Mbit H does not even piention these b,onds., Exhibit I is an agreement between-M. .S; Littlefield rand .Houstoun, which vdo.es not.even, mqntjopqtheEtatei bonds. .-Exhibit X is an
Exhibit L is a receipt given by Coddington, the agent of S. W. Hopkins & Co. for this one million bonds of the Florida Central Company. In this receipt he declares that he holds these bonds in trust for Houstoun, to pay him other sums for other parties named. The arrangement, however, was “based on the' assumption that the money would be paid from the proceeds of bonds negotiated by S. W. Hopkins & Co., of New York.”' The remainder of said proceeds was to be disposed of' as directed by the parties interested. These company bonds Coddington exchanged for State bonds.' The other evidence shows this, and hence we must look elsewhere than to this exhibit to trace the bonds of the State. '
While Coddingtdn contracted to hold the company bonds in trust,'he in fact exchanged them for State bonds. These he received as'the agent of S. W. Hopkins & Co., who were fiscal age fits bf the JV P. & M: Co. It cannot be said that the receipt shows either a pledge or sale of these particular State bonds. . Tkis receipt of Coddington is dated the 11th January; 1871: • The next' thing in the case stated having reference'to "the locality and status of the one million of .State bonds is a receipt' '(marked exhibit M) of S. W. Hop-
- Exhibit N,, to'which importance. .is given by the plaintiff, •is.a, letter of M. ,S. Littlefield - to Si W. Hopkins & Co'., offering to sell them the entire, four million bonds authorized sto be issued by the State.,. It is as followss . ,, ,
Messrs. S. "W. Hopkins &■ Co., London: ,
Gentlemen: I'herewith offer you 4,000 Florida' State-8 per cent gold bonds in aid of the Jacksonville, Pensacola, and Mobile Railroad Company for one thousand ($1,000} dollars gold each, at the price of one hundred (£100) pounds, sterling for each bond in the city of London, subject to theeommission agreed as per contract dated 13th day of April, 1870, with your good selves.
I remain, gentlemen, yours faithfully, ■
M. S. Littlefield, •
• J. P. & M. R. R. Co.
This is nothing more than an offer to sell these bonds, made a year before they were delivered to Coddington.. There is nothing to show that S. W. Hopkins & Co. made-such a purchase or took the bonds on these terms, or that they now hold this one million for any advances, or that any person has either paid or advanced money on these bonds to the J. P. & M. Co. This receipt to Littlefield, dated April 15, 1871, long after this letter in which they speak of subsequent advanees that may be made by them, shows that there was no sale to them.
Exhibit O is a resolution of the stockholders of the-Florida Central Company, passed May 13,1871, authorizing-E. Houstoun to place the bonds referred to in the preamble- and resolutions of the stockholders of the company, adopted June 2,1870, in the hands of S. ~W. Hopkins & Co. for the purpose mentioned in said resolution, subject to the same exceptions as therein expressed with- respect to the proportion thereof applicable to the stock owned by other parties and according to the terms therein- mentioned. This resolution, as a matter of course, does not show the present locality of the State bonds. Exhibit M, as we have, before-seen, shows the condition of the bonds, long after this resolution, in the hands of S. ~W.. Hopkins & Co., and it is unnecessary to repeat here what has been said in that eoncention.
The several,, recitals in .this - deed. must, be-congtr.ued;together and made' consistent. The, general power,as to,the, contract for the proceeds of four. Millions■ of bonds,-is afterwards limited, and in this limitation-,;$1^200;0.00 ,of these-, bonds are stated' to be on deposit in,. London-^ and1 these:., parties contract to apply these $l,2()0,00p.of-bond's to the'' completion, of the road, at,-the,,same, time agreeing not to-.,, intérfere with any contract or arrangement'for the sale or negotiation of bonds made with .Collinson or Barnett. A fair construction of, these recitals-shows,-that $1,200,000 of the four million'of bonds .are ,on deposit in London, and we are by this contract'left in.doubt -as to- whether1 the one-million of bonds then on deposit are not the bonds of the State exchanged with the: Jacks'oriville, Pensacola and Mobile.Company for the bonds of. the Florida .Central Company, which are the .bonds- out of which the rights, and equi--. ties claimed in this -suit by the State arise. This question is settled by. an admission- of the.State through.its attorney placed on record that the Florida, Central- Nailroad Com- , pany could prove b¡¡-.John Collinson that the bonds of the . State issued for the 'Florida Central Road have never been sold, cm id. that nothing' has been paid by the State'on said\ State bonds <md coupons g. and by a like admission.,of the attorney óf the - State that C. L. Chase, who was one of the trusr tees in this deed, c'ould prove'-that he was, ip, London in 1873 / that he went there to getthe State bonds, bade and found they had ■■ notbeen sold/ .that hewasdefeatédbytheaetionpf theStatein’this suit from-receiving the retu/rn of the State ¡bonds ; and
All of this is established -by the following admission and agreement of counsel, which we find in,the record :
“ State and Trustees vs. Jacksonville, Pensacola and Mobile Railroad Company and others — Duval Circuit Court.
“Defendant, Florida Central Central Railroad Company, can prove by T. B. Coddington that the bonds of the Florida Central Railroad Company were delivered by him, to the State of Florida and he received the bonds of the State; that the transaction was secret, and to avoid legal interruption of the same, he took a carriage and proceeded beyond the limits of Florida; that all this was done without the knowledge or consent of this company ; that he received'the one million of Florida bonds from the State as the agent of the State, and after the Florida Central Railroad Company had rescinded its resolution pretending to authorize the exchange of bonds; that he received the bonds now sued, upon from Edward Houstoun after the rescinding of said resolution, as well as after they had been returned to the company in compliance with the rescinding resolution ; that he was to. receive twenty-five thousand dollars for carrying out this negotiation, which was unauthorized by said company and a' wrong upon the same ; that the State knew at the time, of receiving the company’s bonds and delivering the State bonds to Coddington that the rescinding resolution had been passed, and that Houstoun nor any other person had been given. any authority' by the company or the directors subsequent to the passage of said rescinding resolution to surrender said,bonds to the State or exchange the same for State bonds, or part with said company bonds.
“And by John Collinson,-(50•■Old Broad Street, London,)
“By C. L. Chase, Austin, Minnesota; — “ Was in London in 1873 ;. went there to get the State bonds back and found they had not been sold.” The circumstances of Houstoun’s delivery of the company bonds to State through Codding-ton ; that he was defeated by the action of the State in this suit from receiving the return of the-State.bonds, and the State bonds had not been sold at the commencement of of this .suit. . •
State of Florida, Duval County,
“ Personally appeared M. S„ Littlefield, a, stockholder of the .Florida-.Central.Railroad Company, and, he ..being .duly sworn,- saySi;.thatJie is such stockholder-;' that the ¡facts stated _ aboye can be,proved by. the parties above named.; that the testimony,of said ...parties is, material, and- cannot be ,,dis- . .pensed, with by; the defendant in the c%use,or. otherwise; -that, said, partiesjresiile,-beyond the limits, of the. State;.of .Florida.: . ' „ ■ M. S. Littm;j?iel:d.
■“ Swpm to.and subscribed before me this. 21th.day of June, A. D.,1875. , J'. H. JIubkee,• ... .
Notary Pt^bKe^nd-^ef^e^,.
-I; hereby .consent, .to; the fQrOgoing.statemqnt .of-.what the . - Florida-Central Railroad Company can prove, by T/ B.- Ood:'dingtony John; Collinson -and O. .L. Chase,.’sworn .toby.Mi ,S. Littlefield, be, Admitted, as testimony tor. .the, defendant, ;and
June 24, 1675. • Plaintiff’s Attorney.”-
It is thus apparent from this testimony that these’bonds are either in the hands of Collinson unsold, or in the control of S. W. Hopkins & Co., the agents of the Jacksonville, Pensacola and Mobile Company, undisposed of or unsold. If in the hands of S. W. Hopkins & Co., ánd the statements of their receipt (Exhibit M.) are accepted as true, they are held as collaterals to secure “ subsequent advances that may be made by them against -the one million óf bonds,” and the proof nowhere shows that any such advances were made against these bonds ; on the contrary, by the admission of the State, they are unsold. Under these circumstances, there being jurisdiction in a court of -equity to en-fore the trust by decree and sale, has the State a right of action as against this defendant ? ’ ■
In the case of Holland vs. the State of Florida, 15 Fla. 454, we held that while the State bond as an obligation against the State, as a simple and primary debtor, was Void for the want of constitutional power in the Legislature to authorize such obligation, yét that under the statute the State held the bonds of the company and the mortgage lien enuring thereby for the benefit of the holder of the State bonds. That the State, under the Statute, was to occupy these two relations, and that while the one failed for want of constitutional power in the Legislature to authorize it, the other must be sustained because the Legislature did have the constitutional power to create it, and it was the duty of the court to enforce it. This court did not hold that the relation and rights of the State as “trustee” were the result of any equity springing from the circumstances, mdependent of the statute, but that its -relation as a trustee was a creatwre of the statute. That viewed in this light the lien created by the statute.-and the company bond was for the
With this statement of that decision, and our explanation of it Is ¡only necessaryi to- say further in reference to the ■ present case, that'no cause of action has been here shown-by The State, asfherecords and proofs, instead of disclosing the existence ::of,; a ; T bondholder¡within the meaning of the law, show simply that- .the-, bonds, are unsold and still in the Rands of the agents ;of thé T, R.;&;M. RcR. Co, This coipp'any. cannot- hold .these bonds with,: the - right to enforce The •lien df The Stateragainst the: Florida,Central Railroad Cpmopahy undep: the-.statute. -.i,-:The .consideration.which, wps .to
The Florida Central Company has, as against the trustee, the State, and the J. P. & M. Company, the right to resist such claim by the State in behalf of the J. P. & M. Company. The bond of the Florida Central Company is exchanged with the J. P. & M. Company under, the law to enable it through an exchange with the State to receive the State bond, and to apply the proceeds of' the sale thereof to the construction of this line of road. It would be entirely inconsistent with this whole legislation and the legal duties and rights of the J. P. & M. Company resulting therefrom, to permit it to hold bonds of the State of Florida, exchanged for” bonds of the Florida Central Company, as a Creditor of the latter company collecting through the trustee, the State, interest from the Florida Central Company. -
■ Upon the issues and evidence as: admitted1 by the State the case was with the defendant the Florida Central Rail-l-oad Company, and the bill should have been dismissed as to this company.: This judgment, however, should have been without prejudice. - ' - '■ ..... .
¥e next consider the appeal of Edward M. L’Engle. He ' claims to “ represent and stand in the place: of the Jacksonville* Pensacola ' arid Mobile ■ Railroad Corripany ” for the purposes of this appeal* being a-stockholder therein. This eantidt be. The corporation is rin artificial thing representing the whole body of the stockholders, and no one ,stockholder can prosecute an appeal from adjudgment against the Corporation: He can nó more do-so than . could A prosecute an appeal against 13.' The same-rule applies which
: This stockholder having no right to appeal for the eompany, that corporation is not before this court, nor can the judgment against it be reviewed on this appeal.
This party appeals also from an order dismissing the bill ¿\as to him, he having been sued as a stockholder in these two ¡roads. After answer of this defendant, but before decree i against him as such stockholder, the court, on motion of the ¡defendant, “ordered and adjudged that the cause be discontinued as to the 6aid defendant at the plaintiff’s costs.” | This is'an order dismissing the bill, “ with costs,” and there ¡¡was neither counter-claims nor cross bill. It was the duty ¡¡of'this defendant upon this order of the court to prepare and. ¿present his memorandum of'costs, and have them , taxed. As remarked by the Supreme Court of • Wisconsin; “ The opposite party may well be supposed to be unable to tax the cost of his adversary,” (4 Wis. 283,) and this taxation was necessary to a formal demand upon the plaintiff for these costs, or if defendant wished to ask a formal judgment he should have furnished the court with a memorandum of' his costs. Whether he could have such judgment against the State is a'question wé do not consider. He could have had his' costs taxed at any rate, ánd-tlíe rule controlling the subject would have been that applicable to ordinary -civil suits of the State. We do not think it is too late té' de this
We next consider the appeal of Fannie S. Papy, executrix •of the last will of Mariano D, Papy, deceased, and the appeal •of Robert J. Washington. The only order that can he made •in this court as to these two persons is to dismiss the appeal in each case. . ....
The question as to the appeal of the executrix of the-last will of Mariano D. Papy, deceased, is one easy of solution, about which there can be no doubt, controlled as it is by •the most simple and elementary principles. The ease so far as material, may he stated thus: ■
The Trustees of the Internal Improvement Fund (plaintiffs) allege that Mariano D. Papy holds certain, securities ■which “ equitably belong ” to them. After answer of M. H. Papy and evidence taken in reference to the status and ¡history -of these securities, there was judgment declaring 'the Trustees of the Internal Improvement Fund., entitled to ¡them. '(This judgment is dated August 20, 1875.) In no portion of this record, before this judgment, is- there a suggestion of the death of Mariano D. Papy; and the;only thing in reference to the whole subject is a certified copy «of letters testamentary .issued to the executrix, of the last will -of Mariano D. Papy, deceased, which were, issued the ifth of July, A.'T). 1875,. and .were' filed, in. this cause the ■6th;of J ami ary, 3876, after the ■ rendition -:.of. the,.final judgment... It thus appears that Mariano D. Papy had died .before the.decree was pronounced,/ The-cause .of..action..not ¡surviving,,as a matter of course-the suit by Ms death abated .as to him.- No order of the court, or other matter .making ¡his executrix a party, is in the-record.: For,.t-his reason she Iliad no standing ip.the.oouikkelow;, uAdisi^AO.QqnditjQn.fco be heard upon appeal,here. > .-¡a L,.a
-, -What: may, be- the;proper.-proceeding upojl the.parfcofthe ¡plaintiffs t-o revive thetsuit;í\s?§g&lit§Víke OSgputriXjlQrtwhat
The case of Robert J. Washington, without going into unnecessary details, is this : The Trustees of the Internal Improvement Fund, plaintiffs, bring this action against Milton S. Littlefield and the J. P. & M. R. R. Company, claiming that they are entitled to certain securities purchased by him or the company, under an agreement made with the trustees to purchase and surrender these securities to them for cancellation. On the 20th of August, A. D. 1875, the court “ adjudged ” these securities to be the property of the trustees, and this is the final judgment rendered as to them. On the 6th of January, A. I). 1876, Robert J. Washington filed, among the papers in this case,, the report of a special master of the Circuit Court of the United States for the Northern District of Florida, stating a sale on the 2d day of August, 187.5, of the interest of M. S. Littlefield in these securities, under a decree made in a case pending in the Circuit Court of the United States, wherein John H. Miller was plaintiff and Milton S. Littlefield and others were defendants. The master reported that at this sale Robert J. Washington, through his agent, E. M. L’Engle, was the purchaser of said securities. Upon the same day a certified copy of the decree of the Circuit Court of the United States in the case stated,.directing a sale .of Little-field’s interest in these securities, was also filed in this case.
In Philips vs. Shelton, (6 Iowa, 545,) the Supreme Court of Iowa held that a party has no right to apjieal until some question to which he was a party has been adjudicated by the court of original jurisdiction. The action of the party whose appeal was dismissed in that case is very similar to that of Washington here. The action was for specific performance of a contract to convey real estate. S. filed a statement that he was a creditor of defendant, and had had attached the land claimed by the complainant. There was nothing in the transcript to show that S. was made a party to the suit, or that any steps were taken by him further than to file said statement, except to appeal from the decree rendered in favor of complainant. The appeal was dismissed. See also 13 Smedes and Mar., 97; 2 California, 57 ; 13 La. An., 199.
The pi’aetice in the English courts is, that a person not a party to the record cannot appeal without some action of the court exercising original jurisdiction as to him or his rights. "When not a party to the case, he must first resort to the court below. Berry vs. the Attorney-General, 2 Mac. and Gov., 16, cited in 2 Daniels’ Chy. Prac., 1541.
In the case of Gifford vs. Hort, 1 Sch. and Lef., 41, it is held that if the right of a remainderman or of any person entitled to the estate in any way is bound by the decree, he, as well as the person against whom it was made, lias a right to appeal from it. But he does not appeal by filing a simple statement setting forth what be conceives to be his right; and then enter an appeal, as was done here. He files a-
It is said that creditors coming in before the master under a decree may appeal, although not parties to the bill. Such is the remark of the chancellor in the case of Gifford vs. Hort. The distinction between .this case and the case of the creditors is evident. A creditor coming into the master’s office to contest the claims of others, or to maintain those of himself, is bound by the decree and is substantantially a party to the case, although his name may not have been inserted as a party. If it is a general creditor’s bill, then all creditors coming in are, technically, parties to the bill. The court in this case has taken action with reference to his rights, has exercised original jurisdiction as to him with him before it, and there is the proper basis for the exercise of supervisory and appellate jurisdiction as to the action of the court in reference to his claim or demand.
Even, therefore, if Washington’s rights were affected (and it is only in such cases that he can come in and appeal) by, the decree against Littlefield, and the' practice of the English courts prevail in this matter, (as to which question we say nothing,) Washington has not taken the proper course to give himself the status of an appellant in this court. His appeal must, therefore, be dismissed.
The following judgment will be entered in this cause :
This cause having been submitted át a previous term of the court on briefs by counsel for both parties, and a transcript of the record of the judgment aforesaid having been seen and inspected, it is considered by the court that the appeals of Eannie H Papy, executrix of the last will and testament of Mariano I). Papy, deceased, and of Bobert J. Washington, are dismissed.
It. is further considered that the order dismissing the case as to,Edward M. L’Engle is.affirmed;
It is further considered that Iherfe is error in said judg
It is further considered that the respondents recover against the said Fannie S. Papy, executrix of the last will and testament of M.ariano D. Papy, deceased, and against Robert J. Washington and Edward M. L’Engle, all costs by said respondents in this behalf expended, and that the costs in this behalf expended by the Florida Central Railroad Company be taxed by the clerk against the respondent, the State of Florida.