when it appears that a liberty has been granted, but has been misused, judgment of seizure into the king's hands shall be given.' The reason is given: that which came from the king is returned there by seizure; but that which never came from him, but was usurped, shall be declared null and void. Judgment of ouster is rendered against individuals for unlawfully assuming to be a corporation. It is rendered against corporations for exercising a franchise not authorized by their charter. In such case the corporation is ousted of such franchise, but not of being a corporation. Judgment of seizure is given against a corporation for a forfeiture of its corporate privileges. The information in this case is, therefore, not the proper proceeding to call in question the corporate existence of the defendant; but in so far as it seeks to oust the defendants from the exercise of any franchise not granted to them it is appropriate. When, therefore, an information is filed under the revised statutes against a corporation by its corporate name, the existence of the corporation is admitted, or rather that it once had a legal existence." In Massachusetts the rule has been stated, as follows: "Upon an information in the nature of a quo warranto, which in our practice has superseded the ancient writ of quo warranto, the judgment may be, that the franchise usurped be seized into the sovereigns hands, if it be one which the sovereign can repossess and enjoy, or it may be a judgment of ouster. In this commonwealth, in the case of a business corporation, where the object of the information is merely to declare the charter forfeited and to exclude the corporation from the right to further exercise its franchises, a judgment of ouster is appropriate, strictly and technically a judgment either of seizure or of ouster, probably does not dissolve the corporation, but it at least suspends the right to exercise its franchises."2 1 People v. Rensselaer & Sar. R. R. Co., 15 Wend. 113; s. c., 30 Am. Dec. 33, 37. 2 Campbell v. Talbott, 132 Mass. 174, 177. See also Rex v. Mayor of London, 1 Show. 274, 280; Rex v. Mayor & Aldermen of Hertford, 1 Ld. Raym. 426; s. c., 3 Salk. 374; Attorney-General v. Salem, 103 Mass. 138. § 224. Application of the Rule to Illegal Combinations.—In a recent and leading case in Nebraska we have the following illustration of the application of this rule in cases of this character: "The findings in this case, to which no objections are made, clearly show that the object of the distilling company in entering into the illegal combination was to destroy competition and create a monopoly, not only by limiting the production of alcohol, but by dismantling as many distilleries as the trust saw fit, absolutely prevent the manufacture of the article except in the few establishments controlled by the trust, and thus it would be enabled to control prices, prevent production, and create a monopoly of the most offensive character. Any contract entered into with such an object in view is, under the laws of this State, null and void, and the conveyance from the distilling company to the trust was in contravention of the authority conferred by the statutes on that company in excess of the powers granted by its charter, and against public policy and void, and no title passed by such conveyance. Since the bringing of this action the trust has endeavored to transfor the title of the property, and its attorney, after making an elaborate and able argument in its favor in this court, announced that he withdrew from the case. The court, however, cannot permit the trust thus to evade the law. If it can dismantle the property, it will, in part at least, have accomplished its illegal purpose. The property is within the jurisdiction of the court, and it is the duty of the court to make such disposition of it as the ends of justice may require. As there has been an abuse of the corporate franchise, it will be dissolved and annulled." 1 State v. Nebraska Distilling Co., 29 Neb. 700, 719. The Gas Trust Company mentioned was incorporated under the general law for two purposes, as expressed in its articles of association: First, for the purpose of erecting and operating gas works for the manufacture and sale of gas in Chicago and other places in this State; and, second, "to purchase and hold or sell the capital stock, or purchase or lease or operate the property, plant, good will, rights and franchises of any gas company or companies, in Chicago or elsewhere," etc. The company sought to exercise the powers claimed under the second clause only, and for that purpose bought a majority of § 225. Remedy by Injunction.-As we have seen, information by quo warranto is the usual process where there is an appeal to an extraordinary remedy, but there are cases where an injunction will issue. In the case of the United States v. The Trans-Missouri Freight Association, it was held that the fourth section of the act,-referring to the Federal Anti-Trust Act of July 2d, 1890,-invests the government with full power and authority to bring such a suit as this; and if the facts alleged are proved, an injunction should issue.1 In the opinion in this case the rule is set forth by Mr. Justice Peckham, as follows: "It is also argued that the United States have no standing in court to maintain this bill; that they have no pecuniary interest in the result of the litigation, or in the question to be decided by the court. We think the fourth section of the act invests the government with full power and authority to bring such an action as this, and if the facts be proved, an injunction should issue. Congress having the control of interstate commerce, has also the duty of protecting it, and it is entirely competent for that body to give the remedy by injunction as more efficient than any other civil remedy." the shares of all the stock of all the gas companies in Chicago, being four in number, whereby it might have the control of all the gas companies in the city, and thus destroy competition and monopolize the gas business: Held, that the corporation so formed was not for a lawful purpose, and that all acts done by it toward the accomplishment of such object were illegal and void. People v. Chicago Gas Trust Co., 130 Ill. 268. 1 United States v. Trans-Missouri Freight Association, 166 U. S. 290. 2 United States v. Trans-Missouri Freight Association, 166 U. S. 290, 343. "We need not inquire how far, or under what circumstances, considerations of public policy and of the general interests of the State 2 may affect the right of a corporation to discontinue the business for which it was created, and to surrender to another corporation its property and the conduct of such business. We do decide that such a surrender of the property, and, so far as possible, of the functions, of a corporation, in order that, which it is still to continue in existence, its business may be carried on by another corporation, to which such transfer is made, would violate the rights of a non-assenting stockholder arising from the contract implied, if not expressed, in the creation of such an organization; and he would be entitled to have such acts restrained by injunction. Stewart v. Erie & Western Trans. Co., 17 Minn. 348; Cook, The leading authorities cited in this opinion is that of the decision of this court in the case of In re Debs. The opinion in this case is referred to as a full and able discussion of the rule. In that opinion the rule is stated, as follows: "Is there no other alternative than the use of force on the part of the executive authorities whenever obstructions arise to the freedom of interstate commerce or the transportation of the mails? Is the army the only instrument by which Stocks. §§ 667, 668; 1 Mor. Priv. Corp. $$ 413, 416; Black v. Delaware, etc. Canal Co., 24 N. J. Eq. 455; Zabriskie v. Hackensack & N. Y. R. Co., 18 N. J. Eq. 178; Abbott v. Am. Hard Rubber Co., 33 Barb. 578; Middlesex R. Co. v. Boston & Chelsea R. Co., 115 Mass. 347. In the absence of express provisions to the contrary, it is to be considered as the law concerning business corporations that their affairs are to be managed in the interest of their stockholders, and by directors or agents appointed by them. Small v. Minneapolis Electro Matrix Co., 45 Minn. 264, 267. See also Central R. R. Co. v. Collins, 40 Ga. 582. "It is well settled that where a corporate excess of power tends to the public injury or to defeat public policy it may be restrained in equity at his suit. In Attorney-General v. Delaware & Bound Brook R. R. Co., 12 C. E. Green, 631, 633, in pronouncing the opinion of the court of errors and appeals, Mr. Justice Dixon said: 'In equity, as in the law court, the attorney-general has the right, in cases where the property of the sovereign or interests of the public are directly concerned, to institute suit by what may be called civil information for their protection. The State is not left without redress in its own court, because no private citizen chooses to encounter the difficulty of defending it, but has appointed this high public officer, on whom it has cast the responsibility, and to whom, therefore, it has given the right of appearing in its behalf and invoking the judgment of the court on such question of public moment.' Professor Pomeroy, in his work on Equity Jurisprudence, § 1093, states the rule in this lanquage: 'When the managing body are doing, or are about to do, an ultra vires act of such a nature as to produce public mischief, the attorney-general, as the representative of the public and of the government, may maintain an equitable suit for preventive relief.' It appears that the attorney-general has the election in his discretion whether, in cases of excess in corporate powers, he will proceed at law to forfeit the charter and franchises or apply in equity for a restraint of the excess. Both tribunals are open to him. The right of appeal to equity does not depend upon the inadequacy of the legal remedy. This subject is stated by Chief Justice Ryan, in Attorney-General v. Railroad Companies, 35 Wis. 524, in this way: "The equitable jurisdiction precludes the objection that there is an adequate remedy at law. It admits the remedy at law, but administers its own remedy in pref rights of the public can be enforced and the peace of the nation preserved? Grant that any public nuisance may be forcibly abated, either at the instance of the authorities or by any individual suffering private damage therefrom, the existence of this right of forcible abatement is not inconsistent with, nor does it destroy, the right of appeal in an orderly way to the courts for a judicial determination, and erence when the State seeks it in preference. It seems to proceed on the presumption that it may better serve the public interest to restrain a corporation than to permit it by penal remedies or to forfeit its charter; and that, on that view, the proper officers of the State should have an election of remedies. And we may as well say, in this connection, that the jurisdiction to entertain these informations is wholly independent of an adequate remedy at law; and that were that otherwise we could not consider the informations in the nature of a quo warranto, pending in this court against these defendants, as an adequate remedy at law, which could be a substitute for or bar to the injunction asked. Judgment of ouster on those informations might not only be of far more grave consequence to the defendants, but might be far less beneficial to the State, and less accordant with its policy, and altogether less equitable and proper than the injunction sought to restrain the defendants from doing what is alleged to work a forfeiture of their charters.' There has been some disagreement among the cases as to whether an injunction will issue at the instance of the attorney-general to restrain every excess of corporate power or whether before it issues, actual threatened injury must be mani fest. The argument which sustains the first class of cases is that every excess of corporate power violates the contract with the government, and thereby invades public and governmental rights. The law deems such invasion to be a public injury. An apt illustration is to be found in the case of Thomas v. West Jersey R. R. Co., 101 U. S. 71, where there was an authorized lease of a railroad. The supreme court there held, that the franchises and powers granted to a railway company are designed to be exercised by it for the public good, and this purpose enters into the consideration for the grant any contract therefore, by which the corporation disables itself to perform those duties to the public, or attempts to absolve itself from their obligation, without the consent of the State, is a violation of its contract with the State and tends to the public injury. The argument to sustain the other class of cases is that a court of equity should not move upon mere legal intendment, but should be satisfied of a real, substantial public injury which demands the writ of injunction in the due protection of the public. In the use at least, of a preliminary injunction, the latter class of cases appears to be the better founded in fitness and reason, for if there be no present emergency to be met why may not |