Although a suit be nominally by a state as the plaintiff, yet
where the real plaintiffs are individuals -- as
ex gr. in
a
quo warranto, where the state is plaintiff
ex
relatione -- the court will not advance, even by consent of
counsel on both sides, a case under the Act of June 30, 1870.
Seven persons, asserting themselves to be the true directors of
the Rochester & Genesee Railroad Company, a corporation created
by the State of New York, brought suit in one of the courts of that
state in the nature of a
quo warranto -- using the name of
The People of the State of New York as plaintiff with their own
names as relators -- against one Miller and several others, who
also asserted themselves to be directors, charging that these last
had unlawfully usurped the office of directors, from which they,
the relators, had been unlawfully ousted.
The case being transferred from the special term of the court to
which it was brought to the general term, the names of the seven
relators were dropped, and the matter proceeded in the name of "The
People of the State of New York" alone. Judgment being finally
given in the case thus entitled by the Court of Appeals in New
York, the case came here from that court on error, and now,
standing low down on the docket, a motion was made by Mr. T. Bacon,
for the plaintiff in error, Mr. J. C. Cochrane in behalf of the
other side, favoring the same, and having himself made a
Page 79 U. S. 160
similar motion, to advance the cause and bear it at such time as
the Court should direct.
The motion was made under the Act of 30 June, 1870, which
provides:
"That in all suits . . . now pending or which may hereafter be
brought in any of the courts of the United States, whether original
suits in the courts of the United States, or brought into said
courts by appeal or writ of error, . . . wherein a state is a
party, . . . or where the execution of the revenue laws of any
state may be enjoined or stayed by judicial order or process . . .
, it shall be the duty of any court in which such case may be
pending, on sufficient reason shown, to give to such cause the
preference and priority over all other civil causes pending in such
court between private parties."
"And the state or party claiming under the state the execution
of whose revenue laws is enjoined or suspended shall have a right
to have such cause heard at any time after such cause is docketed
in such court in preference to any other civil cause pending in
such court between private parties."
It was stated at the bar in support of the motion under this
statute that in addition to the suit being by the state of New
York, and so within the statute on that ground, the state named was
interested in a fiscal point of view in the successful operation of
the road, now greatly interfered with and almost arrested by the
quarrels between the different bodies asserting themselves to be
its true board of directors; that the revenue laws of the state and
her receipts from the road were in fact suspended until the road
was put into quiet and successful operation -- that is to say, were
suspended by the judicial order or process granting a writ of error
in the case, until the disposition of which in some way the road
could not be put into the sort of operation spoken of.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
The motion is that the cause be advanced, and that it be beard
at such time as the Court shall direct, in preference to civil
causes between private parties.
Founded as the motion is, upon the Act of Congress of the
Page 79 U. S. 161
thirtieth of June, 1870
*, it becomes
necessary to inquire and determine whether the case is within the
terms of that act, as if it is, the motion should be granted, and
the cause set for hearing as there directed.
Provision is there made to the effect that in all suits and
actions now pending or which may hereafter be brought in a federal
court, whether the suit is original or brought into said courts by
appeal or writ of error or by removal from a state court, wherein a
state is a party or where the execution of the revenue laws of any
state may be enjoined or stayed by judicial order or process, it
shall be the duty of any court in which such case may be pending,
on sufficient reason shown, to give such cause the preference and
priority over all other civil causes pending in such court between
private parties.
Reliance, however, is placed, in support of the motion, upon the
next clause of the act, which provides that the state, or the party
claiming under the laws of the state, the execution of whose
revenue laws is enjoined or suspended shall have a right to have
such cause heard at any time after such cause is docketed in such
court in preference to any other civil cause pending in such court
between private parties, as provided in the last phrase of the
preceding clause.<>*
No objection to the motion is made by the defendants. Instead of
that, they have filed one to the same effect, but such motions are
not granted as of course, even when both parties concur, as such an
order, if improperly made, would prejudice the rights of other
parties on the calendar, and in view of that consideration it
becomes necessary to determine whether the case is one where the
parties, or either of them, are entitled to such preference, and to
enable us to determine that point, we have examined the record, and
are satisfied that the motion must be denied.
The action was one in the nature of a
quo warranto to
try the title of the defendants, as directors of the Rochester
& Genesee Valley Railroad, a corporation created by the
laws
Page 79 U. S. 162
of the State of New York and doing business in that state, and
the real controversy is between two sets of directors as to which
set is entitled to manage and control the affairs of the
corporation.
Both parties assume in argument that the suit is in the name of
the state, or the people of the state alone, and it is upon that
ground that it is claimed that the motion ought to be granted; and
if the fact was so, it may be conceded that the cause ought to be
advanced. Such, however, is not the fact. On the contrary, the suit
was brought not only in the name of the People of the State of New
York, but also in the name of seven persons claiming to be
directors of the railroad company, and that they, as such, are
entitled to manage and control its affairs or to participate in
such management and control; and they charge that the defendants,
without any legal authority, right, or warrant whatsoever, have
usurped and entered upon said offices of directors of the said
corporation, and that they still unlawfully hold and exercise those
rights and franchises. Subsequently, when the cause was transferred
to the general term, the names of the seven directors joined as
plaintiffs in the court of original jurisdiction were dropped in
the title of the case, but the whole proceedings in the case in all
the courts of the state where the case was litigated were upon the
declaration as originally filed, without any amendment in that
behalf. Evidently the suit is one in the name of the state, on the
relation of the seven persons who charge that the defendants have
unlawfully usurped the offices of directors from which they have
been unlawfully ousted, or to which they are justly entitled by a
legal election. Suggestion may be made that the state is the only
party plaintiff named in the writ of error, but it is the duty of
the Court in such a case to open the record and ascertain whether
the case in point of fact is one where the parties are entitled to
be heard in preference to other civil causes between party and
party pending on the calendar. Such a case is not within the act of
Congress, and the
Motion is denied.
* 16 Stat. at Large 176.
