Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-07-24


there was no necessity for its enactment, Blu
this injunction power. heretofose exercised. wa
only available. and could be practically applied
and called for by him against whom the excess
| OF power was directed, and if citizen of &
| municipality suffered no greater injury thar
| any other citizen. he could not complain. Thi:
! act empowers the citizen TO bring his action
| without regard to his personal injury, and so
| with sub section of same act.
The first three or the sub-sectiOns quoted
| apply to the person or o1icer-the last three to
| lis needless to consider of those sections re-
latirg to corporations, as the bill in this case
| does not seek to affect the corporation.
We now come to section 8, no which reads rs
| follows; The action also lies to bring the
directors, managers, and officers of q corpora
ton. or the trustees Of funds given for a public
or charitable purposes TO an account for the
management and disposition of property in
trusted to their care; to remove such officers
or trustees on proof of misconduct; to prevent
malversatiOn, population and waste; to set
aside and restrain improper alienation of such
property or funds. and to secure them Tor
the beheft of those interested. and generally TO
compel faithful performance of duty.
1t is TO this section that the argument has
been chiefly directed. The enc SIDE insisting
that 1t applied to all persons who fall within Il
general designation of directors, manaSers and
officers OF a corporations" the other side insists
that it applies only to such persons as are di-
rectors, managers and officers Of (priyate) cor
pOration. "and the trustees of funds given for
public or charitable purpose" To whatever
class this section does apply. it will be apparent
to very slight observation that the powers OF
the court taking Jurisdiction, are as full and
complete as the Legislature could grant. 1t Is
also apparent that this section applies to per-
sons that are directors. managers and officers
OF a corporation. and trustees oftunds. and that
il does not apply to the corporation itselfand d.
rectly. Let us see what are the provisions. First,
spch officers and trustees can be held accountable
for the management and disposition Of pros
Derty intrusted to their care" Is this unreas.
enable when applied TO any officer OF persOn
Who in the land is exempt from its provisions,
outside and without the aid of this statute? Is
there an olheer OF any grade or rank IN the
government, to whom property is inherited.
that Is exempt from all account for its manage
ment and disposition2 An officer or trustee
may have discretion over bis office and its
duties as well as the property inherited to him,
which no court would undertake to control. but
subject to the exercise of this discretion, he
may be held responsible and to an account for
it, and the court may prevent malversation,
peenlatiOn, waste and restrain improper aliens
alton of the same. The books are tull 8
cases Of this character. The case ofthe i1hab
ltants of South Berwick vs. Gale, 81 MaineE4
in which case town was prohibited from
raising and appropriating money Tor the
apprehension of criminals; and the case o.
Hood vs.. Lynn i Allen, LUZ; New London VS..
Brainaid. q Connecticut. $50; in which cases the
towns were prohibited from aPPropriating
money for the celebration of the 18th of July,
or apprOpriating money to raise bOunties for
soldiers eniisting in the army IN the national
shire, 545; As same, 9; 81 Connecticut, AZ; Ibid.
81: Gray, 5OL; IL Minnesota, l24.
The purposes for which q court is allowed to
take jurisdiction under this section is US der
clared, to bring the directors. managers and
officers OF a corporation to an account for the
management and disposition of property in
trusted TO their care, and to remove such OIL
GERS on proof of misconduct; to prevent malver-
satiOn, peculation and waste; to set a ide and
restrain improper alterations of such property,
and to secure them for the benefit of those
interested, and generally to compel faithful
performance of duty, and TO deal likewise with
the trustees of funds given for public or chari-
table purpose. This section by its express
language has reference to the directors. man
ayers and officers Of a corporation" and TO
the trustees of fu.ds given for a public
or charitable purpose" and it is ad
mitted that the provision is judlciOus
and wise one as regards truste of funds, but
much so That the Legislature could never have
so intended, as regards the property intrusted to
each, Are not both but trustees-the one trusted
with more or less discretionary power than the
other. but both alike trustees? But let sub
init this section TO a closer analysis and scru
tiny, and see whether the words directors.
managers and officers of corporation" mean
and include officers OF municipal corporation,
or whether they arc to be construed to apply
alone to officers Of private corporation. Inc
language of the section eOmpelS US to admit
that the Legislature meant the officers of either
a.private CT public corporation, and this much
is conceded by the counses OF the defendants,
and having conceded tits. they ably and in
geniously proceed to show that the Legislature
meant officers OF a private corporation. Now,
let us see how this Is.
The officers of an insurance company, in
which the State has no interest. or of any other
private corporation, organizedifor the advance
ment of the interest, pecuniariIy, of its stock
holders. are desired 10 be brought to account for
the management and disposition of property
intrusted to their care, or TO prevent thomlfrom
committing 'malyersatiOn, peeulation and
asA nsar al 10
alterations" of the company's property made by
such officers. to secure the property for the
benefit OF the stockholders, or to compel these
officers TO a faithful performance of duty. Who
would bring such suit, in whose name
would II lie. the stockholders, or the State
| by her Attorney General2 What has the
State TO do with such matters? What interest
has she II the officers of such corp OratiOn eX-
haust the treasury and bring ruin to the stock
holders? In what capacity of interest
land party 10 a suit must have an interest in
it, could she file bill in such a ease
Why should she allow herself to be entapsled
in every disagreement between stockholders
and officers of such q cOrpOratiOn9 But it may
be said the State lends her name to this stock
holder; but the stakeholder always had theright
and power 10 sue the officers long before the
statute, IN his own name, and without the con-
sent of the Attorney general, Governor or
General Assembly. Ghe Legislature could
| remedy to a stakeholder or other person
as against the Officers. directors or
managers of private corporation tho
very remedies pointed out 10 the at are
the remedies that this court had from its exist
euce administered between stockholders
and officers. We must, therefore, conclude
that the words directors. managers and officers
/ of a corporation IN this section, mean more
| than such of a private corporation. but was in
| tended to apply to public corporations and
| their directors, managers and officers" But
| it may be said that this is a high and dan
1 gerOus power to confer upon the Judiciary,
| and such 1t may be. but tia lex scrpta
| est, and il it be dangerous it IS a power
l conferred unsolicited and may be taken
l way by the power that gave it. 1t Is n
| dangerous power. however. to make any officer
l or person account for property entrusted to his
hEnds. or to prevent malversatiOn. peculation
and waste, or to compel him to perform his
l imply bad faith. imply a margin for discretion
1 and honest error, and all beyond these the law
| seeks through the Judiciary to prevent But il
| may be said this same section gives the court
l the power Ito remove such officers on proof OF
| misconduct" We havejust seen that it is al
| lowed the judiciary to determine whether an
officer unlawiully holds his Office, and whether
| he has done or suffered to be done any act
| which works forfeiture of his Office" thereby
| giving to the courts the power to GUST him f,r
| these two reasons, and having done this, the
| section under consideration merely adds an
other cause of removal. Malversation, pecula-
| ton and waste, or misconduct, or any OF the
| various acts denounced N this section. do not
commence as long as the officers discretion is
L
| mence until after he had passed the bounds OF
| honest error, and once beyond discretion, be-
yOnd honest error and mistaken Judgment, who
/ should not be arrested. Do we ccale the walls
| of justice or cut through the @gis Uf the law in
order to reach that officer uponEwhOse conduct
we first clap the mantle of liberal official dis
erection, and afterwards leave an extended par
gin for mistaken judgment, and if finding hllS
beyond this, in the regions of malversatiOn, Pc
culation, waste and misc nduet, the court lays
its process upon him2 The rule in such cases is
| to presume that the officer has proceeded upon
sufficient information and with correct motives.
1 This rule, however, is confined to those case:
4 where the corporation or Its officers are exer-
/ cising q discretionary pOwer-COoley, Dos, 209.
Tho officers of a municipal corporation, like
| the public officers of the government, in the
/ performance Oftheir public functions. cannot be-
| made liable where no corruption or malice Ii
| imputed, for errors of Judgment, when exer
/ cising legislative. executive or Judicial func
| tions-Deeks VS.. Mayor and others of Rome; 4
| Georgia, $50, The functions of n municipality
| however are two-fOld. First, political, discre
tianary and legislative; secondly, ministerial
| While acting within the sphere of the fOrme
they are exempt from liability, inasmuch as tn
| corporation is part of the government to tina
| extent, and its officers to the came extent ar
| public officers, and as such entitled to the pro
lection of this principles but within the spher
| of the latter, ministerial duties they drop tn
| badges of governmental officers, and become q
it were the representatives OF private corpora
ton in the exercise of private functions. Tn
distinction between those legislative pow
ers which it holds for public purposes
as part of the government of tn
country, aad those private franchises
I which belong to it as creature Of the law, i
| well taken; within the sphere of the former !
| enjoys the exemption of the government fol
its own acts. and the acts of its officers, Hill
n Y 545: 3 Hill 6l2 20 Maryland 46S; and thi
| may be staring the case too strong; because. il
| this and most, if not in all the States, cCrpOr
| alton officer may be criminally prosecuted 70
| a failure to execute his trust
l a m Tp2Orted
| pei them TO the performance of their chartere
| duties-4 Michigan, IS; Ohio. ct II; or To TAX
back a member wrOngfully expelled, 50 Pa l2s
| Is Pa, 2jl.
| If the officers of a municipal corporation ca
| be brought for any purpose connected wit
| their office. iIs duties or the property uPO
which they legislate, before the courts, it mus
be done by this aet. or it cannot be done at a