Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-17

w SoA1AS
into a court of equity to stop the execution
of these laws; but, for aught we know, they
may desire to have them carried into exc
cution.
We have no knowledge of that upon
which we can act in court. They are not
here. My learned friends who drew up the
Mississippi bill saw that here was mischief
common to Mississippi and nine other
States; they saw the necessity of rule to
make all those interested in the subject
matter parties to the case, either by bring
ing them upon the record or having them
represented; and feeling that these other
States had a common interest, the gentle
men say that the State of Mississippi files
this bill, not only on its own account, but
in behalf of these nine other States; and,
.ju1eTepresemt0tionaes, one Staterepresentst ten.
Mr.. Sharkey. [ wish to state to the gem
tleman that the amended bill does not CON
tain that clause.
Attorney General Stanbery. Then the
gentlemen have made their bill little bet
ter than it was at first. Now, 7 beg to sug-
| gest some other matters in which the bill
requires amendment in order to endeavor
to make case. Certainly the gentlemen
had gone wrong there. The State of Geor-
8la, though it does not seek to represent
other States, assumes to represent its own
citizens. The Jus representations is there
too. They admit that the State of Geor-
gia cannot represent the other States, but
they say that the State of Georgia can not
only represent itself as q corporation, but
represent every citizen in the State as q
corporator and therefore it is that the
State of Georgia comes here, not only to
defend its own rights as q political entity
! but the rights of it's citizens, as represent
ing those citizens. How do we know that
the State of Georgia is the T0,rens pat1i0a of
all the citizens of Georgia Where a COR
poration or an individual not only repre-
sents himself, but seeks to represent Others
he must show the court very clearly that
what he asks is for the benefit of those
others By what authority do my learned
friends say they appear for the citizens of
Georgia or Mississippi, and to protect their
rights Have they consulted the citizens
of Mississippi Do they know how they
stand affected with regard to these laws?-
Recollect, not a portion of the citizens
That will not do. The parens pdtrioe is like
the pdter .fanailias ). he must take care of all
his children, not of one only. How do we
know that all the citizens of Georgia admit
that they are represented here, or that
there is any benefit sought by this bill that
will be a benefit to them ? The gentlemen
are clearly of opinion that it is not bene-
| fit to portion of them, certainly. I i'm
agine it would be great benefit to many
| of them, whether ma jority or not I do
dot undertake to say. But where State in
| Its )01'e'aS pCtt1't08 power comes to represent
its citizens as citizens, it must represent
them all, and cannot represent ono set at
the expense of d nother.
Where did tn" gentleman find an analo-
gy for this right of a State to represent its
citizens Ill a matter touching their political
| rights 1t is from cases with regard to a
private corporation and the rights of it's
corporators. In those Of q private corpc-
ration which is Il property corporation, its
| individual members have trusted the COM
mon fund to the hands of the organized
body, and it represents every one of its
shareholders and corporator5 in any suit
| that it may bring, but subject to this quail
tication, that whenever it may be doing
something itself to the injury of those same
shareholders, the right is reciprocal. The
| private corporation says to the shareholder,
| Il will represent you and sue you for your
| benefit. The corporator says, on the con-
trary, "Take care that you represent me
and do the thing that is for my benefit
if you do not, will sue you and hold you
responsible, for at last am the party for
whose benefit all this is to be DONE" There
is then undoubtedly right of representa-
ton but along with that right goas the
necessary right that the ceStui que trust, the
| beneficiary, the corporator shall have the
same powers of representing them by d suit
| in court of justice against his trustee
That right is just as absolutely necessary
as the other. Have we any such right here?
Suppose State can sue for the political
rights of its citizens, and the citizens see
tbo+ bo 70 &c not rao1Iv foy f1,oi,
rights, and do not wish to be involved in
any such controversy as the State is waging,
but, on the contrary, see that the State is
bringing their rights into jeopardy, and in
stead of doing them benefit is about to do
them misch. .ef can the citizens of the
State then sue the State itself No at ALL
It is beyond them. 1t can sue for them,
say the gentlemen, but it cannot be sued
by them Of course, in that respect, it is
not at all like the right of representation
given to private corporation, because that
necessarily involves the right of the corpo-
ration to sue for the cestui que trust, and the
right of the cestui que trust to sue the cor
poration and to protect himself against the
exercise of any corporate power nom1nally
done for the benefit of his right. That
often happens, Us where corporation hav-
ing the common fund, in the exercise of its
discretion, in the judgments of the parties
who control it, the managing element, di-
verts that fund into new enterprise. What
is the consequence :? Instantly right of
action by the shareholder for himself, and
representing the others if they they are too
numerous to be made parties, to call by suit
that corporate trustee to account in a court
of equity.
Now, may it please your Honors, turn
your attention for moment to the rights
set up in this case and to the relief that is
asked by these States or either of them
The right of the State is political right,
in which, in the first place, it represents it.
self-the right to have it's corporate exis-
tence, the right to maintain its corporate
existence That is valuable right, and
under certain circumstances such right as
that can be asserted in a court of equity
not always, for ordinarily court of equity
does not sit to try those questions that arise
in matters OF corporations. No bill can be
filed in this court to strip corporation of
its franchise. That does not belong to
equitable relief, and the party who seeks it
is RENTED to a court of law. But 90 ad-
NIT that a court of equity does possess the
power to protect the franchise of corpo-
ration The gentlemen say, "That is just