lently and illegally issued and held by the directors and other defendants, and which he seeks to have cancelled. Foley Bros. & Guthrie participated in the benefits of this alleged fraudulent scheme, and they would not be permitted to complain of it. The complainant, as their transferee, is in no better situation than they are. He has no greater rights than his transferrers, as regards a remedy invalidating the transaction. The maxim in pari delicto applies, and a court of equity will not aid him. He cannot bring suit in behalf of other stockholders against the corporation or other parties participating in the issue, as his own title is tainted with the same fraud.

Again, a part of the relief sought is to restrain a proposed issue of stock by the corporation, alleged to be a bonus, and a proposed issue of bonds under a contract annexed as Exhibit C to the amended bill, or any modification of it, or the issue or sale of bonds for the purpose of putting out corporate stock without receiving par value for the same; and that the directors and holders of the stock tainted with the alleged fraudulent scheme under the construction and partnership contracts be restrained from selling it. It is urged by counsel to sustain the motion for an injunction on this branch of the case that the complainant, though his assignors may have sold to him stock which is a part of a fraudulent issue, and of which they had notice, yet, as a stockholder, he can enforce corporate rights to prevent threatened illegal acts in the future, and by his amended bill he seeks to prevent the corporation and its directors and officers from carrying out the terms of a contract which are in violation of the statute above recited, and therefore contrary to public policy, and are also disadvantageous and injurious to the corporation and stockholders. The contention on the part of the defendants is that the contract referred to is a real bona fide transaction for the purpose of constructing the entire railroad contemplated by its charter, and to carry out legitimate corporate purposes. The contract complained of is attached to the amended bill of complaint, and is too long to embody in this opinion. Briefly it provides for the sale of $2,000,000 of a new issue of first mortgage bonds at 80 per cent of their par value, and a delivery to the purchasers simultaneously and pro rata with the delivery of the bonds an amount of the capital stock of the railway company equal to 33 per cent of the par value of the bonds purchased; that is, $666,666.66 par value of stock. In substance, the company is to receive $1,600,000 cash for $2,000,000 face value of bonds and $666,666.66 face value of common stock. The bonds and stock are to be delivered as the instalments of cash are received, and the entire amount

is to be expended in building the road and for legitimate corporate purposes. The contract provides in detail for the expenditure of the money received by the company, and furnishes approximate estimates of the cost of structures and rolling stock and ore docks necessary to equip the road, and enable it to successfully engage in the business contemplated by its organization.

Contract not forbidden by statute.

The questions presented in the argument on this branch of the case are: (1) Is such a contract forbidden by the statute supra? (2) Can the complainant bring a stockholder's suit to prevent the corporation from carrying out the contract? This statute was not intended to prevent or interfere with the usual method of raising money to build railroads, or for any legitimate corporate purpose. It is not to be construed as obstructive to the extent of restricting and hampering corporations in their internal management, and embarrass them in procuring means to carry out the legitimate purposes of the corporation; and unless it appears that, under the guise of building its road, bonds and stock of the defendant company are to be issued and put upon the market fraudulently that do not and are not intended to represent money and property, this corporation is not prohibited from entering into a real transaction based upon a present consideration, and having reference to legitimate corporate purposes. Beach, Corp. p. 909, and authorities there cited. Such a transaction is not a scheme or device to evade the statute. It may be that an amount of corporate bonds and stock turned over by a corporation is so much in excess of the expenditures to be made by the recipients of the same that a court would hold that the statute prohibited such a transaction; but if the purpose of the corporation in issuing bonds and stock is to build its road, and no unreasonable amount is issued beyond the value actually received or provided for, the statute, in my opinion, does not apply. As said by the court in Railroad Co. v. Dow, 120 U. S. 298: "The prohibition against the issue of the stock or bonds except for money or property actually received or labor done, and against fictitious increase of stock or indebtedness, was intended to protect stockholders against spoliation, and to guard the public against securities that were absolutely worthless. One of the mischiefs that was sought to be remedied is the flooding of the market with stock and bonds that do not represent anything whatever of substantial value." And, further, the court, recurring to the language employed in the Arkansas constitution, which is substantially like the Minnesota statute, declared that such a provision does not necessarily indicate a purpose to make the

validity of every issue of stock or bonds by a corporation depend upon the inquiry whether the money, property, or labor actually received therefor was of equal value in the market with the stock or bonds so issued. I am of the opinion that this contract is not forbidden by the statute, and that the allegations of threatened wrong acts by directors are not sufficient, as stated in the amended bill, to make it illegal.

Complainant not a stockholder en

titled to sue.

However, if it should be conceded that the contract is one which ought not to be sanctioned by a court of equity, the second question must be determined. I have considered the question involved as if the right of complainant to bring this stockholder's suit was clear. Has he, on the facts stated in the original or amended complaint, the right, as a stockholder, to institute this suit to restrain the corporation from alleged ultra vires and illegal acts? A membership in this corporation consists in the ownership of shares thereof recognized by the corporation. The complainant claims membership by acquiring corporate stock by transfer, but, not having registered his stock, and obtained recognition by the corporation as a stockholder, he can claim no other rights than those which the assignment vests in him. Undoubtedly, as between himself and his assignors, the purchase of the certificate gives him all the rights of ownership, and entitles him to demand that he shall be registered by the corporation; but, until he has caused a transfer to be made upon the books of the corporation, his title, as between the corporation and himself, is not perfected, and he neither has the rights nor is subject to the liabilities of membership. He may bring a suit, under some circumstances, to protect his individual interests in the corporate property, but he cannot participate in the management of the corporation, and enforce corporate rights to restrain threatened wrongs on the corporate interests. He brings this suit in behalf of himself and his associate stockholders. Not being a stockholder himself recognized by the corporation, he is personally precluded from doing this. In Heath v. Railway Co., 8 Blatchf. 347, 392, 410, it was held by the court that one Burt, who was not a stockholder, was improperly joined as a complainant. See, also, Ramsey v. Erie Ry. Co., 7 Abb. Pr. (N. S.) 156, and Hersey v. Veazie, 24 Me. 9. In view of this decision, the complainant here has no standing in court to enforce the corporate rights alleged in the amended bill, and the motion for an injunction is denied, and the restraining order discharged.

Let an order be entered to that effect.

54 A. & E. R. Cas.-15

HANSCOM

V.

MINNEAPOLIS STREET R. Co.

(Minnesota Supreme Court, April 27, 1893.)

Agent-Authority to Employ Medical Aid for Person Injured.-Evidence that an agent of a street railway company was authorized by it generally to see that injured persons were taken where medical aid could be given construed as justifying the conclusion that the agent was authorized to employ medical aid in such cases.

APPEAL from Hennepin district court.
Koon, Whelan & Bennett, for appellant.
Jay W. Crane, for respondent.

Authority of

ploy physician.

DICKINSON, J.-While a boy was getting off one of the defendant's street cars, his arm was broken. He was taken by an agent or servant of the defendant, one Shaw, to agent to em- the plaintiff's office, he being a physician and surgeon. He performed the necessary surgical services, treating the boy until recovery. By this action he seeks to recover from the defendant for such services. The evidence tended to show that when Shaw took the boy to the plaintiff's office he requested the plaintiff to attend to the case, and assured him that the defendant would be responsible. The question is presented as to Shaw's authority to thus bind the defendant. He appears to have been an "inspector," whose general duties were to supervise the conduct of other employés in the car service, he acting as their superior. If no more than this had been shown, perhaps it could not have been inferred that he had authority from the defendant to employ a surgeon to treat an injured passenger; but it was shown that the defendant had instructed Shaw, in case of accidents, "to see that those injured were taken somewhere where medical aid could be given," and that he took this boy to the plaintiff pursuant to such instructions. This instruction may well be regarded as contemplating the specified action on the part of Shaw, of his own volition, and without any request by the persons injured; and so he appears to have acted in the case under consideration. Neither the boy nor any one in his behalf appears to have made any request or to have exercised any choice or volition in the matter. It

may be inferred from the evidence that Shaw, acting upon the defendant's general instructions, as above stated, took the boy to his surgeon, selected by himself, in order that the broken arm might be properly treated. From the evidence already referred to, as to Shaw's authority in such cases, it might reasonably be considered, and so the justice may be supposed to have viewed the case, that Shaw's instructions did not contemplate or mean merely that he should remove injured persons to such a place that medical aid could be there bestowed, if a physician or surgeon should come there, by chance or in response to the request or call of any person, but rather that the meaning of his instructions was to place such persons under proper medical or surgical treatment-to see that they should receive such treatment. So construing the evidence, it went to show that Shaw's authority was such that the defendant became chargeable upon his employment of the plaintiff in behalf of the defendant. Hence it is not necessary to consider the subject of ratification.

Judgment affirmed.

VANDERBURGH, J., did not participate in this decision.

Authority of Railroad Agents and Employes to Employ Medical Aid for Injured Persons.-See extended note to the case of Cincinnati, I. St. L. & C. R. Co. v. Davis (Ind.), 44 Am. & Eng. R. Cas. 461-465; see, also, Sevier. Birmingham, S. & T. R. R. Co. (Ala.), 48 Id. 503.

Station Agent--Service of Notice Upon.-The service of a notice to take depositions upon a station agent of a railway company, who had no authority in or connection with the cause in which the deposition was proposed to be taken, is not a legal or sufficient notice. Nor is a notice to take depositions "process," within the meaning of chapter 123 of Kansas Laws of 1871. Atchison, T. & S. F. R. Co. v. Sage, (Kan., Oct. 8, 1892,) 31 Pac. Rep. 140.

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS R. Co.

66

v.

BACKUS.

(Indiana Supreme Court, Feb. 18, 1893.)

Constitutional Law Railroad Companies as "Persons.". - Railroad companies are persons " within the provisions of the federal constitution relating to the due process of law, and the equal protection of the laws. Taxation-State Board of Tax Commissioners-Right to Hearing-Equal Protection of Laws.-Where a county board of assessors are given the power to hear complaints, and to make changes in the valuation of property, and the state board of tax commissioners for the assessment of railroad