The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-07
MANY LAWYERS PRESENT
He Contends That the LA
biIity of Stakeholder Is
Limited.
THE GOVERNMENTS THEORY.
Judge MCKisiCk Enters Upon the
Presentation of His Views on
the Matter.

Judge CARRIER concluded his opening
argument in support of the demurrer of
the Stanford estate against the Govern
ment's bill of complaint yesterday morn
ing and Judge L. D. McKisick proceeded
with his presentation of the compliments
side of the case. The Circuit Court room
was we'll filled during the day, most of the
listeners being well known attorneys,
drawn there by desire to hear the argu-
ments of eminent counsel On such a
weighty matter.
There was not as much eloquence as on
the opening day, Judge CARRIER concluding
his argument and Judge McKisick open
ing with an assortment of hard dry state
ment, utterly unpalatable to the few lay
men present and not particularly refresh
ing to the assembled bar. Dusty volumes
containing decisions and statutes and opin-
ions from the year l almost down to the
present time, where fourisheth Thompson
on the Law of Interpretations, of whom Judge
CARRIER thinks little and Judge McKislck
thinks much, were consulted. Long pas
sages from longer acts were read and deity
dovetailed with the theories of attorneys
and the opinions of courts until every
body but the attorneys actually engaged
were in more or less of middle on the
entire proposition.
Only once during the day was the dreary
monotony relieved, even then only for a
second or so. Judge McKisick. who was
arguing, and Judge CARRIER, who was list
ening, had slight passage-at-arms. The
former was graphically recitlng CONVEX
sation that could have taken place in
Washington at the time of the passage of
the act of 1861, had the then Senator Nc
Dougall called upon Leland Stanford.
5,,tO I,
the United States, Stanford McDougall
would say in that conversation, 1.-The out
come of which will be that you will have
to pay back millions of dollars"
tOh," Stanford would have replied, "let
it 60 through; there's millions in it.
Colonel Sellers isn't in it. Let it go
throughp'
Then Judge McKisick waxed eloquent.
"And the bill went through" he said,
sand the result is the railroad company
owns the railroad; it owns the lands, and
has paid $34, coo, 900 in dividends"
''Is that in the BILL" asked Judge Gar
Der.
trace of asperity. cit is not in the bill. But
everybody knows it, and what every body
knows the court knows"
Judge CARRIER called mildly upon the
court to take notice of these statements,
but before his Honor had chance Judge
McKiSick continued.
ooh, it doesn't matter, " he said; 81 have
enough in the record without that; but l
will say they made millions out of it."
Again Judge CARRIER said the point was
not proper The court made some remark
about keeping within the record. Judge
CARRIER continued with his argument after
pointing out places where he thought op-
posing counsel had gone without the rec
ord, and the little breeze was over. The
only oasis in the desert of dusty volumes,
endless words and stony facts was passed.
When court convened in the morning
Judge CARRIER resumed his argument by
taking up the question of the statute of
limitations as affecting the liability of the
stockholders. There were provisions he
said, in the statutes of California, as early
as 1850, and before this obligation came
into being, which absolutely excluded all
possibility of its enforcement in this forum
or in the State.
In that statute of 1850 was a Limitation,
not such one as in the statute of limita-
tons, which was essentially constituent
of the thing itself. 1t provided that in any
case of the liability of stakeholder suit
must be instituted within three years from
the time of the creation of such liability by
the stakeholder.
This provision, say" continued Mr..
CARRIER, "disposes Of the proposition which
will probably be advanced here, that as the
United States is the party-comp lainaHt
here, the maxim that no time runs against
the sovereign applies. If this were a
statute of limitations, barring the remedy
on a common law remedy, that right might
have its application, but, in this case, the
Government OF the United States comes
into this court seeking TO enforce statu-
tory liability. When it comes in that wav
1t must take 1t in its entirety and in all its
phases. 1t cannot enforce it otherwise
than as the statute provides it shall do"
Mr.. CARRIER then cited the Harrisburg
case, los United States, in support of his
contention; and furnished numerous
Others on the point that the United States
the complainant, was bound by the SUI
preme Court of the State in the considera-
ton of the laws of the State. and on the
further point that the liability set up in
the bill was merely a creature of the stat
ute.
Now ] submit" he continued, s'that on
principle it must be held that on coming
to enforce their statnte of liability, created
by the statute of 1861, coupled with the
provision OF the law of 1850 lever since re-
tanned IN the statutes of California; that a
suit must be instituted within three years
after the liability was created and not after
the cause of action of that liability shall
have accrued, this action must fail not on
the grounds of any statute of limitations,
but because the case is not within the con-
dltlon OF the contract presumed to have
been made by the stakeholder in taking
the stock:
"All these laws" he continued further
on, providing for the liability of stock
holders have been found in practice to be
productive of unsatisfactory and unfruit-
full litigation. 1t has also been found that
they drive these corporations, these potent
factors in the advancement and progress of
States, to other States, where more liberal
laws are on the statute-books. But the
Legislature OF California did not and did
not intend to create any such provision. 1t
made sharp distinction right there and
then and for good and plain and sufficient
reasons, as think your Honor will agree.
The law is not only plain and unambigu-
Gus upon its very face but it is founded
upon a good and sufficient reason and con-