The herald., 1897-03-07

equally true that when a statutory LA
bility is not in its nature penal, and does
not depend upon remedies whose en-
forcement is peculiar to the courts OF the
state which has created the law-when
in short, statutory liability is personal
liability growing out of the contract of
the shareholder, that liability may be
enforced wherever jurisdiction over the
particular shareholder may be obtained
1T is to be considered then, whether
the statute of Kansas alluded to in Great
ing the special liability, designates a
mode for its enforcement, which may
not be exercised without the jurisdic-
ton of its courts. or whether 1t merely
provides for a personal liability, en-
forcible in an action at law in any of
the courts of sister states possessing
common law jurisdiction.
TT Is to be noted that the statute in
question offers a twofold remedy to the
judgment creditor of a corporation
whose execution has been returned
'nulla-bona.' 1t first provides remedy
peculiar to the laws of Kansas and un-
inforcible in other forums. The second
is embraced in the portion of the stat
ute which has been quoted That this
language empowers the judgment cred
itor to maintain his action at law
against a shareholder wherever he may
be found, and to do this without first
obtaining judgment against the Kan
sas corporation in the courts of the state
where the statutory liability of the
shareholders is sought to be enforced,
we entertain no doubt, and IL doubt
were to be entertained. the numerous
and uniform decisions of the supreme
court Of Kansas. of the federal courts
and of the other courts of sister states
so interpreting this clause. would be
cnN7pient tO remove II.
ut Is contended by appellants that the
Electric Rapid Transit company, or
ganfzed under the laws Of Kansas, is
railroad corporation, and that its stock
holders are, therefore, relieved from all
liability under the constitution of the
state We approach the consideration
of the special provision with reluctance,
for It has not received judicial interpret
alton in this regard from the supreme
court of Kansas, and 1t must needs be
embarrassing for the courts of another
state to be called upon in the first in
stance to put their own interpretations
upon the constitutional provisions of
sister tsate. There are certain consid-
erations however. which will go far to-
ward the elucidaton of the question, so
far as affects this corporation. 1t may
be safely said that the privilege held out
to stockholders of railroad corporations
organized under the laws of Kansas was
not designed as an invitation to foreign
ers or citizens of other states to take
advantage of the Kansas laws, and thus
secure immunity to themselves, while
equipping and operating railroads en-
tirely without the boundaries of the
state. Agriculture was and is one of the
most important industries of Kansas.
Cheap transportation and ready mar
ket are essential to agricultural success.
This the trainers of the Kansas consti-
tuition we'll knew, and it is not unreason-
able to infer that the exemption held out
to stockholders of railroad corporations
organized under the laws Of Kansas was
designed to prompt and stimulate the
building of railroads within the state, III
aid of one of its greatest industries. 1t
is not so easy to believe that the purpose
of that constitution was to exempt from
liability the stockholders of street rail-
roads, which are designed merely to IA
cilitate travel and communication upon
the public highways Of municipality,
while at the same time the stockholders
of mercantile, manufacturing and bank
ing corporations, which corporations
certainly tend as much to the public
convenience and welfare as do street
railroad corporations, should be held 70
strict accountability We recognize that
the word railroad or railway as used
in law, is broad enough to include street
railroads, and that many cases have
arisen where the courts have held that
the word does in its significance include
such corporations. The exemption from
liability of stockholders of railroad cor
porations under the constitution of Kan
sas is an immunity in the nature of
grant or privilege. There is no rule of
construction which makes it mandatory
upon a court to hold that railroad must
include street railroad, and upon the
principle that all grants from the state
are construed most strongly in favor
Of the grantor, 1t would certainly be
proper in this case, no reason to the con-
trary being shown, to narrow, rather
than to broaden, the meaning of the
word, and to limit its applicability to the
one class which is necessarily embraced
within the term, and we therefore con-
klude that the provision of the constitu-
ton of Kansas under consideration was
not designed to apply to stockholders
of street railroad corporations.
The judgment and order are, there
fore, affirmed"
The kindred suit of John A. Swope,
plaintiff and respondent, VS.. NJ. H. Sher-
man ct al, defendants and appellants
wherein similar questions arise, has also
been affirmed by the supreme court.