Jersey. The only jurisdiction given to the State of New York, beyond the boundary line specified in article first, over the waters of the Kill van Kull, is that specified in article fourth, by which it is declared that "The State of New York shall have exclusive jurisdiction of and over the waters of the Kill van Kull between Staten Island and New Jersey, to the westernmost end of Shooter's Island in respect to such quarantine laws, and laws relating to passengers, as now exist or may hereafter be passed under the authority of that State, and for executing the same." The rest of that article relates to Staten Island Sound west of Shooter's Island, and has no reference to this case. The jurisdiction thus conceded to New York is, clearly, a limited one, and cannot, in any view, be regarded as altering the general boundary line; and as the tug, when seized, was on the New Jersey side of that line, she was within the State of New Jersey, not because she was fastened to a dock on the shore of New Jersey, but because she was within that part of the waters between Staten Island and New Jersey which, by article first of the agreement, is set apart to New Jersey. or exclude a particular piece of territory, it is a reasonable construction to say, that the judicial district shall, ipso facto, without further legislation by Congress, expand or contract accordingly. When the State of Massachusetts ceded to the State of New York, in 1853, its sovereignty and jurisdiction over the District of Boston Corner, and the latter State accepted the same, and Congress consented to such cession and annexation, Act of Jan. 3, 1855, ch. 20, 10 Stat. at L., 602, there was no special transfer by Congress of the annexed territory from the District of Massachusetts to the Southern District of New York, but it fell within that district by becoming a part of Columbia County, in the State of New York. The provision in the Act of June 28, 1834, that nothing in the agreement between New York and New Jersey shall impair “Any right of jurisdiction of the United States in and over the islands or waters which form the subject of the said agreement," is well satisfied without construing it as applying to the then existing jurisdiction of any particular court of the United States. Article second of the agreement provides that "The State of New York shall retain its present jurisdiction of and over Bedlow's and Ellis' Islands; and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that State." Other articles of the agreement provide for the exclusive jurisdiction of New York or New Jersey over specified waters. In giving consent to the agreement, and 'each and every part and article thereof,” Congress was consenting, apparently, as against any rights of jurisdiction which the United States then had, to the exclusive jurisdictions of New York and New Jersey, respectively, over the islands and waters referred to. Hence, for abundant caution, the clause in question was added. New York had, by an Act passed Feb States jurisdiction over "All that certain island. called Bedlow's Island, bounded on all sides by the waters of the Hudson River, all that certain island called Oyster Island," known afterwards and now as Ellis' Island, “bounded on all sides by the waters of the Hudson River," and also Governor's Island, reserving to the State the right to serve and execute, on those Islands respectively, civil or criminal process issuing under the authority of the State. Being thus within the State of New Jersey, was the tug within the District of New Jersey and within the territorial jurisdiction of the District Court of the United States for the District of New Jersey? We are all of the opinion that, when the Act of Congress of 1789 declared that the New Jersey District should consist of the State of New Jersey, it intended that any territory, land or water, which should at any time, with the express assent of Congress, form part of that State, should form part of the District of New Jersey. By sections 530 and 531 of the Revised Statutes, the State of New Jersey constitutes a judicial district. The intention is, that the boundary of the district shall be coterminous with the boundary of the State. The same thing is true as to the Southern Dis-ruary 15, 1800, 1 R. L., 189, ceded to the United trict of New York, and as to the district across the water at the locus in quo, which is the Eastern District of New York. That district was created by the Act of February 25, 1865, ch. 54, 13 Stat. at L., 438, to consist of "The Counties of Kings, Queens, Suffolk and Richmond, in the State of New York, with the waters thereof." By section 541 of the Revised Statutes, the Northern District of New York is defined as including the Counties of Albany, Rensselaer, Schoharie and Delaware, with all the counties north (and west) of them; the Eastern District as including The Counties of Richmond, Kings, Queens and Suffolk, with the waters thereof;" and the Southern District as including "the residue of said State, with the waters thereof." It is consonant with the convenience and habits of the people, that when any place is within the limits and jurisdiction of a State, it should not be joined to the whole or a part of another State, as to the jurisdiction of the courts of the Federal Government; and it is not to be presumed, in view of the terms of the statutes on the subject, and of the necessity for the consent of Congress to all compacts between the States, that such separation can be intended unless clearly expressed. Where Congress declares that such a judicial district shall consist of such a State, and afterwards the boundary of the State is so lawfully altered as to include Reference is made to article 6 of the Amendments of the Constitution, which provides that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law;" and it is suggested that the boundaries of a district could not be ascertained by law, if they were left to change with such local changes as coterminous States might agree upon with each other as to their respective boundaries and limits. Article 6 was one of ten articles proposed by the first Congress, as Amendments to the Constitution, on the 25th of September, 1789, the day after the Judiciary Act was approved, providing that the New York District should consist of the State of New York, and the New Jersey District of the State of New Jersey, and defining and ascertaining by law all James H. McKenney, Clerk, Sup. Court, U. S. Cited 109 U. S., 176. v. WILLIAM KING, OHIO AND MISSIS- the other districts which it established, solely by | risdiction on the view that that jurisdiction was naming the several States as districts. There not to be governed by the provisions of the agreewere two disputes as to boundary, existing at ment between New York and New Jersey. Our that time, between Massachusetts and Rhode attention has not been called to any case before Island, both of them running back to colonial the present one where a Federal Court in New times, one respecting the northern boundary of Jersey has passed on the question of the limits of Rhode Island, and the other respecting the the District of New Jersey, as affected by that eastern boundary of Rhode Island. The par- agreement. There being thus a conflict of inticulars of the first dispute appear in the record terpretation between the judicial authorities of of a suit in equity brought in this court by R. the two districts, as to the question of the terI.v. Mass., in 1832, 12 Pet., 657, to settle such ritorial jurisdiction of those districts, it is imnorthern boundary. In December, 1845, by a portant that the effect of the agreement between decree of this court, the bill in the suit was dis- the two States on that jurisdiction should be missed on the merits, and the northern bound- clearly defined. This we have endeavored to ary of Rhode Island was established on the line do. The result is, that the application for the writ claimed by Massachusetts. In 1854, Massachu- of prohibition must be denied. setts filed a bill in equity, in this court, against True copy. Test: Rhode Island, to settle said eastern boundary. A conventional boundary line, different from that claimed by either State, was agreed upon and sanctioned by Congress, by an Act approved February 9, 1859, ch. 28, 11 Stat. at L., 382, and established by a decree of this court made December 16, 1861, to take effect March 1, 1862. GEORGE HENRY WARREN ET AL., Appts., The Act of Congress declared that the new line should be taken and deemed to be, for all purposes affecting the jurisdiction of the United States, or of any department of the government thereof, the true line of boundary between Massachusetts and Rhode Island. In the latter case, as in the present one, the boundary between the two disputing States was settled on a line different from that claimed by either. The Judiciary Act defined the State as the district, not the State as either party to the dispute claimed it to be; and the effect of the change of state boundary in the present case, on the limits of judicial districts, must be held to be as potent as that in the case of Massachusetts and Rhode Island, notwithstanding the affirmative provision, in the Act in the latter case, as to the jurisdiction of the United States and of the departments of its government. Congress has always left judicial districts to be confined within state limits. Of course, the district, as a place of trial must be ascertained by law before the crime is committed, and a person charged with a crime cannot be tried for it in a district which did not include, when the crime was committed, the place where it was committed. Whether a change in the boundary of a State, and thus of a district, after the commission of a crime and before a trial for it, would have the effect of preventing a trial in any district, is a question which must be decided when it shall arise. The mode adopted by Congress, of ascertaining districts by law, in such manner that their boundaries shall change as the boundaries of the States change, is one at least sufficient and convenient for practical purposes in all cases except where a person charged with crime, and placed on trial in a particular district, may be able to establish that his rights under article 6 of the Amendments of the Constitution are being violated. Views not in harmony with those above set forth were expressed by the District Court for the Southern District of New York in the case of U. S. v. The Julia Lawrence, and the case of The L. W. Eaton, 9 Ben., 289. The former case was decided by Judge Betts, in 1860, and from that time forward the District Court for the Southern District of New York exercised its ju (See S. C., Reporter's ed., 389-400.) Rights of preferred stockholders of railroad company. *Certificates of preferred stock of the Ohio and Mississippi Railway Company were issued, containing the following language: 66 The preferred stock is to be and remain a first claim upon the property of the Company after its indebtedness, and the net earnings of the Company seven per cent per anholder thereof shall be entitled to receive from the num, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock; and whenever the net earnings of the Corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said full, and seven per cent dividend upon the common interest of seven per cent on the preferred stock in stock, for the year in which said net earnings are so applied, then the excess of such net earnings ferred and common shares equally, share by share;" after such payments shall be divided upon the preheld, that the preferred stockholders had no claim on the property superior to that of creditors under the issue of the preferred stock, and that their only debts contracted by the Company subsequently to valid claim was one to a priority over the holders of common stock. [No. 268.] Argued Apr. 24, 1883. Decided May 7, 1883. APPEAL from the Circuit Court of the United States for the District of Indiana. The history and facts of the case fully appear in the opinion of the court. Messrs. Grosvenor P. Lowrey and John K. Porter, for appellants. Messrs. E. M. Johnson, Benj. Harrison, *Head note by Mr. Justice BLATCHFORD. NOTE.-Preferred stock; its issue; rights of holders of. Preferred stock entitles its holders to a priority of don India Rubber Co., 5 Law R. Eq., 519; Burt v. dividends over holders of common shares. Re LonRattie, 31 Ohio St., 116; Taft v. Hartford, etc., R. R. George Hoadley and Edward Colston, for King | gage debt recited in the decrees, to Allan Campet al., appellees. Mr. Wheeler H. Peckham, for Campbell, appellee. Mr. Justice Blatchford delivered the opinion of the court: bell and others, "trustees of creditors and stockholders of said Ohio and Mississippi Railroad Company (Eastern Division)." This trust was created by an instrument in writing dated December 15, 1858, and known as the "Trust agreement of creditors and stockholders of the In November, 1876, William King and others, Ohio and Mississippi Railroad Company of Indiholders of second mortgage bonds and of Spring- ana and Ohio.” By it, Allan Campbell and field Division bonds of the Ohio and Mis- others were created trustees, for the purpose of sissippi Railway Company, filed a bill in the providing forand protecting claims of judgment Circuit Court of the United States for the Dis- creditors and other persons holding liens on the trict of Indiana, to foreclose two mortgages on property and franchises of the Company, and the property of the Company, subject to a first also certain holders of unliquidated demands mortgage. In August, 1877, Allan Campbell, a against it, and also the interests of the stockdefendant in that suit and trustee of one of the holders of the Company. Such interests of the two mortgages, called the second mortgage, and creditors and stockholders became vested in the also of the first mortgage, filed a bill and a cross-trustees from time to time, so that on the 14th bill in the same court, to foreclose those two of September, 1867, they were the owners, submortgages. In January, 1879, the two suits ject to the terms of the trust agreement, of the were consolidated. In December, 1879, George rights, claims and interests of all the creditors Henry Warren and others, as owners of pre- and stockholders of the Company in its propferred stock of the Company, having been made erty and franchises, except those existing under parties defendant to the consolidated suit, filed a first mortgage made in May, 1853. The trusta cross-bill. To this cross-bill, a general demur- ees issued, in exchange for the interests they so rer for want of equity was interposed. The acquired, certificates in two classes, preferred court sustained the demurrer, and entered a de- and common. Under an amendment made in cree dismissing the cross-bill for want of equity. April, 18C3, to the trust agreement, the trustees King v. R. R. Co., 2 Fed. Rep., 36. From this purchased, for the benefit of the trust and the decree, the plaintiffs in that bill have appealed persons interested therein under the agreement to this court. of December, 1858, all the stock and a portion The sole question involved is, whether the of the bonds of the Illinois Company of 1851, preferred stockholders are entitled to have their sometimes called the Western Division. On the shares of stock declared to be a lien on the prop- 14th of September, 1867, the certificate holders, erty of the Company next after the first mort- by an instrument known as "Amendments to gage. As the question arises on demurrer, the the trust agreement of December, 1858," reallegations of the cross-bill are to be taken as solved that the trustees had made the purchase true. The Ohio and Mississippi Railroad Com- of January, 1867, for the benefit of those interpany, having been incorporated by Indiana in ested in the trust agreement of December, 1858, February, 1848, was incorporated by Ohio in and had, in virtue of the Amendment of April, March, 1849, and by Illinois in February, 1851. 1863, purchased all the stock and a portion of Under a second mortgage made by it in Janu- the bonds of the Illinois Company of 1851; that, ary, 1854, all the property and franchises of the by such purchases, the whole road from CinIllinois Company were sold, on a foreclosure of cinnati to St. Louis had become the property of that mortgage, in June, 1862, to the Ohio and the trust, subject only to outstanding mortMississippi Railroad Company, an Illinois Cor- gages; that it was the intention of all parties poration created in February, 1861, for the pur- interested in the trust to form a new corporapose of purchasing the property and franchises tion, to which the entire property of the trust of the Illinois Corporation of February, 1851. might be transferred, in accordance with the The property and franchises of the Indiana and original agreement, such property to consist of Ohio Corporations were sold, under judicial de-all the rights and interests in the railroad in the crees, in January, 1867, subject to certain mort-three States; that the capital stock of the new Co., 8 R. I., 335; Bailey v. Han., etc., R. R. Co. 84 U. Without express authority by statute or consent of the common shareholder the corporation has no power to issue preferred stock. March v. Eastern R. R. Co., 43 N. H., 516; Bates v. Androscoggin Ry. Co., 49 Me., 491; Prouty v. Mich., etc., R. R. Co., 1 Hun, 655; Kent v. Quicksilver Min. Co., 12 Hun, 53; Jones v. Terre Haute, etc., R. R. Co., 57 N. Y., 196; Hoyt v. Quicksilver Min. Co., 78 N. Y., 159; S. C., 9 Week. Dig., 187; affg. 17 Hun, 169: Curry v. Scott, 54 Pa. St., 270; Sturges v. E. Un. Ry. Co., De Gex, M. & G., 158; Matthews v. Gt. Northern Ry. Co., 28 L. J. Ch., 375; Green's Brice, Ultra Vires, 145; Hutton v. Scarborough Cliff Hotel Co., 2 Drew & Sm. 521. It has been held that where the power exists it must be exercised solely for the purpose of obtaining capital. Herals v. Gt. Westn. Ry. Co., 3 L. R. Ch., 262; Henry v. Gt. Northern Ry. Co., 4 K. & J., 1; 27 L. J. Ch., 1; Corry v. Londonderry, etc., Ry. Co., 29 Beav., 263; 3 L. J. Ch., 290; Coates v. Nottingham Water Works Co., 30 Beav., 86. Interest or dividends on preferred shares can only be paid out of profits actually earned; any agreement to the contrary is opposed to public policy and void. Lockhart v. Van Alstyne, 31 Mich., 76; S. C., 18 Am. Rep., 156; Macdougall v. Jersey Imp. Hotel Under a power to issue a certain number of shares of preferred stock, the stockholders cannot by resolution authorize the issue of a greater number. Melhado v. Hamilton W. N., 28 L. T. N. S., 578; 29 L. T. N. S., 364. The court will leave dividends on common stock largely to the discretion of the director, but will inquire into the affairs of the company and require the payment of the current profits or net earnings on preferred stock, according to the terms of the agreement, when justice may require. Bailey v. Han., etc., R. R. Co., 84 U. S., XXI., 611; affg. 1 Dill, 174; St. John v. Erie Ry. Co., 89 U. S., XXII., 743 affg. 10 Blatch., 271; Bates v. Androscoggin, etc., R. R. Co., 49 Me., 491; Williston v. Mich., etc., R. R. Co., 13 Allen, 400; Barnard v. Vt. & Mass. R. R. Co., 7 Allen, 512; McLaughlin v. Detroit, etc., R. R. Co., 8 Mich., 100; Thompson v. Erie, etc., R. R. Co., 45 N. Y., 468; Prouty v. Mich., etc., R. R. Co., 1 Hun, &; West Chester, etc., R. R. Co. v. Jackson, 77 Pa. st.. 321; Rutland R. R. Co. v. Thrall, 35 Vt., 536. Corporation should consist of 35,000 shares of preferred stock and 200,000 shares of common stock, being in all $23,500,000 of stock, which should be issued and distributed to the owners of trustees' certificates registered on the books of the trust, as follows, namely: to owners of preferred certificates, preferred full paid stock, for the amount of such preferred certificates, at the rate of one share of preferred stock for every $100 of preferred certificates; that it should be declared upon the face of said preferred stock that it is to be and remain a first claim upon the property of the Corporation after its indebtedness; that the holders thereof shall be entitled to receive from the net earnings of the Company seven per cent per annum upon the amount of said stock, payable semiannually, "And to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock of said Corporation, and that whenever the net earnings of the Corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of 7 per cent on the preferred stock in full, and 7 per cent dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings, after such payments, shall be divided upon the preferred and common stock equally, share by share;" that the common stock should be issued to holders of common certificates at the same rate; that the new Corporation should be authorized to create a new mortgage on its entire property, consisting of three hundred and forty miles of railroad from Cincinnati to St. Louis, and upon the contemplated improvements thereon, for an amount not exceeding $6,000,000, $4,000,000 whereof should be used exclusively to take up the then outstanding bonds issued under the mortgages theretofore created on said road; that, if a branch should be built to Louisville, the new Corporation might increase the preferred stock at the rate of $10,000 for each mile in length of such branch, and the $6,000,000 mortgage to the amount of $15,000 for each mile of such branch; and that holders of the outstanding bonds of the old Company, both eastern and western divisions, and holders of bonds to be issued by the new Corporation, should be entitled to one vote for each $100 of bonds so held, at all stockholders' meetings, and on all affairs of the Corporation. on the road for $6,000,000, of which $4,000,000 should be appropriated and used to take up the then existing mortgage bonds on the property, and should have "All such further powers and rights as are conferred and contemplated in certain amendments adopted by the certificate holders at a meeting held by them on the 14th day of September, A. D. 1867, of an agreement dated December 15th, A. D. 1858, of the creditors and stockholders of the Ohio and Missis sippi Railroad Company of Indiana and Ohio, said agreement representing a trust which, at the date of said amendments, embodied the entire ownership of the property of both said companies so consolidated." The consolidated Company issued preferred stock to the amount of 35,000 shares, upon certificates in the following form: "Ohio and Mississippi Railway Company. Reorganized and consolidated 1867. Preferred stock. This is to certify that to -is entitled -shares of the preferred capital stock of the Ohio and Mississippi Railway Company, of $100 each, transferable only on the books of said Company, in the City of New York, in person or by attorney, on the surrender of this certificate. The preferred stock is to be and remain a first claim upon the property of the Corporation after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the Company seven per cent per annum, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock; and whenever the net earnings of the Corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of seven per cent on the preferred stock in full, and sev en per cent dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings after such payments shall be divided upon the preferred and common shares equally, share by share." These preferred shares were issued in exchange for the trustees' preferred certificates, in pursuance of the resolutions of September 14, 1867. The cross-bill alleges that the certificate holders, by the resolutions of September 14, 1867, intended and declared that the preferred stock Under statutes of Indiana and Ohio, Allan to be issued should give to its holders not only Campbell and others, as such trustees, became a preference in respect to dividends over the a Corporation in those States by the name of the common stock, but also the preference of a speOhio and Mississippi Railway Company. Its cific and continuing lien and security upon the capital stock was fixed at 35,000 shares, of $100 property of the new Corporation, next after the each, of preferred stock, and 200,000 shares, of then existing mortgage indebtedness; that it was $100 each, of common stock, and provision was in accordance with and in execution of this inmade, in the certificate of incorporation, for in- tention that the certificate holders further recreasing its preferred stock in an amount not solved that it should be declared upon the face exceeding $10,000 a mile for each mile of a of the certificates of such preferred stock that branch to Louisville. In November, 1867, the it should be and remain a first claim upon the Illinois Company and the Indiana and Ohio property of the Corporation after its indebtedCompany were consolidated under the name of ness; that the indebtedness referred to in the the Ohio and Mississippi Railway Company, by resolutions, and in the preferred stock certifiarticles of consolidation which provided for is- cates, was such indebtedness only as should arise suing preferred and common capital stock of under the $6,000,000 mortgage, that amount bethe consolidated Company to the extent above ing designed to represent, and having been austated, and that the consolidated Corporation thorized for the purpose of taking up and canshould be authorized to create a new mortgage | celing, the indebtedness existing at the time of The rights of the holders of preferred stock in this case must be determined by the language of the stock certificate. That is exactly the same as the language of the written instruments which preceded the issuing of the certificates. The shares are shares of the capital stock of the Company, though shares with different privileges from shares of the common stock. The certificate declares the quality of the preferred stock in two respects: 1, its relation to the property of the Company; 2, its relation to the net earnings. the consolidation on the property of the two | the preferred stock, with all unpaid interest due consolidating Companies; and that the consoli- thereon, at seven per cent. dated Company, under the articles of consolidation, became bound to perform the provisions of the amendments of September, 1867, to the trust agreement, as to preferred stock, and the securing the same on the property of the consolidated Company, to the full intent thereof. Besides the preferred stock to the amount of $3,500,000, further preferred stock, in the above form, to the amount of $800,000, was issued on the building of the Louisville branch. The plaintiffs in the cross-bill, as owners of shares of such preferred stock, aver that they, in common with the other preferred stockholders, had and have a lien and security and first claim upon all the property and franchises of the consolidated Company which existed at the time of the original issue of such preferred stock, in or about the year 1867, next after and subject only to the indebtedness under the $6,000,000 mortgage, as authorized by said articles of con-imburse the principal of capital stock until all solidation, as representing and designed to cover and cancel the only indebtedness on either of the consolidated roads which was outstanding at the time of such consolidation, and are entitled to the payment of interest, as stipulated in the certificate, out of such net earnings of the Company as may remain after payment of interest on first mortgage bonds, and in priority and preference to the payment of any interest or indebtedness under any mortgage subsequent in date to the first mortgage, that being a mortgage executed in December, 1867, under which bonds to the amount of about $6,800,000 have been issued. Under the so-called second mort-3, 1865, 1 Davis' Stat.,730, entitled, "An Act to gage, issued in March, 1871, and sought to be foreclosed in the original suit, $4,000,000 of bonds have been issued. The other mortgage sought to be foreclosed in the original suit is called the Springfield Division mortgage, and was executed in January, 1875, to secure $3,000,000 of bonds. The bill prays for a decree that such preferred stockholders are entitled, as such, to, and have always had, a specific and continuing lien and security and first claim upon, and in all the property and franchises of the Company, next after, and subject only to, the interest and security therein which is given under the first mortgage of December, 1867, and have been and are entitled to receive seven per cent interest upon their shares, out of the net earnings of the Company remaining after the payment of interest to the holders of the first mortgage bonds. It also prays that, in any decree of foreclosure of either of the mortgages so sought to be foreclosed, the rights of the preferred stockholders may be declared to be a lien and security on the property and franchises of the Company next after that secured by the first mortgage of December, 1867; that, in case of foreclosure of the first mortgage, all surplus, after the satisfaction of claims thereunder, be applied, first, to payment in full, or pro rata,of the par value of their shares, to the preferred stockholders; and that, in case of foreclosure of either the second mortgage or the Springfield Division mortgage, the decree therein shall provide that any sale, in either of such cases, shall be subject to not only the amount due under the first mortgage, but also, and next in order, to the amount at par of As to the property, it is declared that the preferred stock is to be and remain a first claim on the property of the Company after its indebtedness. But it is stock and part of the capital stock, with the characteristics of capital stock. One of such characteristics is, that no part of the property of a corporation shall go to rethe debts of the Corporation have been paid. It would require the clearest language to admit of the application of a different rule to any capital stock. Section 5 of the Statute of Indiana of June 15, 1852, "establishing provisions respecting corporations" (1 Davis' Stat., 369), enacted as follows: "If any part of the capital stock of such company shall be withdrawn and refunded to the stockholders before the pay. ment of all the debts of the Company, all the stockholders of such Company shall be jointly and severally liable for the payment of such debts." The railroad law of Indiana, of March Authorize, Regulate and Confirm the Sale of Railroads, to Enable Purchasers of the Same to Form Corporations and to Exercise Corporate Powers, and to Define Their Rights, Powers and Privileges, to Enable Such Corporations to Purchase and Construct Connecting and Branch Roads, and to Operate and Maintain the Same," under which law this Company was reorganized, provided, in section 5, that the Corporation should have power to "Make preferred stock, make and establish preference in respect to dividends in favor of one or more classes of stock over and above other classes, and secure the same, in such order and manner and to such extent, as said Corporation may deem expedient;" and section 20 of the general law of Indiana of May 11, 1852, providing for the incorporation of railroad companies (1 Davis' Stat., 706), provided that a corporation organized under it might issue "A preferred stock to an amount not exceeding one half of the amount of its capital, with such priority over the remaining stock of such company, in the payment of dividends, as the directors of such company may determine, and shall be approved by a majority of the stockholders." It would be difficult to say that these statutory provisions allowed any preference in shares of capital stock, except a preference among classes of shares, or any preference of any class of shareholders over creditors. It is not to be supposed that those engaged in reorganizing this Company intended to violate the law of Indiana, or the general principles of law applicable to private corporations. Nor is there anything to show that they did. The language of the cer |