the next day after the service of the bill he as treasurer, pursuant to the order of the president and directors of said defendant railroad corporation, negotiated the two remaining checks to certain innocent parties having no notice of the pendency of this suit, in payment of certain of said first mortgage coupons payable that day and held by them; and the balance of the proceeds thereof received from said parties he applied in payment of the remaining coupons.

There can be no doubt that neither the bank nor Dana could be charged in law as the trustee of the railroad corporation for and on account of the checks. R. S., c. 86, § 55; Clark v. Viles, 32 Maine, 32; Skowhegan Bank v. Farrar, 46 Maine, 293; Bowker v. Hill, 60 Maine, 172, 175. But by this process all kinds of property, including negotiable paper, may be reached.

And neither could Dana be held at law as the trustee for any kind of property belonging to the corporation in his official custody as treasurer; for that is the way and the only way that a corporation can hold its funds. The possession of the treasurer is the possession of the corporation; and the treasurer cannot be charged as the trustee of his corporation for its property in his official custody, for the reason that he is quoad hoc the corporation.___ Pettingill v. And. R. R. Co., 51 Maine, 370; Sprague v. Steam Nav. Co., 52 Maine, 592; Bowker v. Hill, supra.

We do not perceive how it can or why it should be in anywise different in an equitable trustee process. There must be some third person made a defendant who sustains the relation of equitable trustee to the debtor. Phoenix Ins. Co. v. Abbott, supra. But if its officers can be summoned as trustees of the corporation, then the action is in substance against the corporation as debtor with the corporation as trustec. Pettingill v. And. R. R. Co., supra.

We are aware that in Silloway v. Columbia Ins. Co., supra, the only trustec summoned was the agent of the company resident in Massachusetts, the company being located in Sontli Carolina. Our answer is that the question was not raised in that case. So several cases have been maintained in Massachusetts wherein no equitable trustee was made a party defendant because the question was not raised. Soule, J., in Phoenix Insurance Co. v. Abbott, 127 Mass. 561. Again, the Massachusetts statute, where Silloway v. Columbia Ins. Co. was decided, expressly provided for the maintenance of the bill when the debtor did not reside in the commonwealththe purpose of the statute being to reach property belonging to a non-resident debtor. Bigelow, J., in Davis v. Worden, 13 Gray,

306.

Inasmuch therefore as there is no equitable trustee holden, the bill must be dismissed with costs.

Appleton, C. J., Walton, Barrows, Danforth and Symonds, JJ... concurred.

THE NEW ORLEANS, MOBILE AND TEXAS R. R. Co. AND OTHERS

V.

HENRY ELLERMAN.

(Advance Case, U. S. Supreme Court. March 20, 1882.)

The appellee, Ellerman, by contract with the city of New Orleans, became the lessee of all the public wharves owned by the city for a period of near five years, with all the rights, privileges and franchises of the city in regard to said wharves. The legislature having authorized the railroad company to construct a wharf of its own for the accommodation of vessels doing business in connection with its road, that company permitted other vessels to use the wharf for which it charged compensation. On a bill filed by Ellerman to enjoin the use of appellant's wharf this court held: That Ellerman had no such exclusive right by his contract with the city to have all vessels land at the wharves leased by him from the city and pay him for so doing, as would enable him to sustain his suit. Vessels were not bound to use his wharves if they chose to land at others, and whether the railroad company exceeded their chartered rights in receiving compensation for the use of their wharf from those doing no business in connection with their railroad was a question in which he had no special interest beyond that of the general public.

APPEAL from the Circuit Court for the district of Louisiana. The statement of the case in the opinion of the court is complete.

The case was argued at the last term of the court by Mr. John A. Campbell and Mr. Bayne, for appellants, and by Mr. Durant, for appellee, and after consideration by the court it was ordered to be re-argued at this term.

It was accordingly argued again this term by Mr. Cadwallader and Mr. Bayne, for appellants, and Mr. Horner, for appellee, mainly on the question suggested by the court, whether Ellerman was a proper party to sustain a bill for injunction in the case, or whether the State of Louisiana alone could bring such a bill.

MATTHEWS, J.-The New Orleans, Mobile and Texas R. R. Co., one of the appellants and the principal defendant below, is a cor poration of the State of Alabama, by the original name of New Orleans, Mobile and Chattanooga R. R. Co., which has constructed a line of railroad from Mobile to New Orleans. It was authorized by its charter "to obtain by purchase or grant from any person or corporation, and afterwards maintain, manage, use and enjoy any railroad property, and the appurtenances thereto, or any steamboats, piers, wharves, and the appurtenances thereto, that the directors may deem necessary, profitable and convenient for the corporation to own, use and manage in connection with its railroads." Session Acts of Alabama, 1866.

The General Assembly of the State of Louisiana, on August 16, 1868, passed an act which recognized it as a body corporate, and authorized it to exercise its franchise in Louisiana, and expressly conferred upon it power "to construct, establish, or purchase in the State of Louisiana, and thereafter to own, maintain and use suitable wharves, piers, warehouses, steamboats, harbors, depots, stations and other works and appurtenances connected with and incidental to said railroad and the business of said company, and by the directors of said company deemed necessary and expedient for said company to own and manage."

In 1869 it was further enacted by the legislature of that State, "that the said company, with the consent of the owners of the lands fronting on any navigable water-course, or after such lands have been acquired by the company by purchase, release, donation, or in any other manner, in accordance with the laws of the State of Louisiana, may erect, construct, and thereafter maintain and use wharves, warehouses, depots, or other buildings and structures in and upon the margins, or upon that portion of the margins reserved to public use, of any and all navigable rivers, bayous, or water-courses in the State of Louisiana, wherever the same may be deemed, by a majority of the directors of the company, necessary and requisite for the legitimate and convenient transaction of the business of the company."

On March 6, 1869, the General Assembly of Louisiana passed a joint resolution, having the force of law, granting to the railroad company "the right to enclose and occupy for its purposes and uses, in such a manner as the directors of said company may determine, that portion of the levee, batture and wharf in the city of New Orleans, between the street laid out between Pilie street and the Mississippi River, and from Calliope street to the lower line (about three hundred and fifty-five feet below Calliope street) of the batture rights owned by said company, and no steamship or other vessel shall occupy or lie at said wharf, or receive or discharge cargo thereat, except by and with the consent of said company; and all steamships or vessels discharging or receiving cargo at said wharf for said company, or any steamships or vessels using said wharf, by and with the consent of said company, and not receiving or discharging cargo at or occupying any other wharf in the city of New Orleans, shall be exempt from the payment of all levee and wharf dues to the city of New Orleans. Said wharf shall be maintained and kept in repairs by said company." All laws and parts of laws and all ordinances and parts of ordinances conflicting with the provisions of this joint resolution were thereby repealed. At the date of the passage of the joint resolution the railroad company was the owner by previous purchase of the land described in it, and in possession, using it for the purposes of a depot and for other railroad purposes, and as a wharf, appropriate structures

9 A. & E. R. Cas.-10

having been built for that use. A portion of this property was leased in June, 1875, by the receivers of the railroad, appointed under proceedings to foreclose, for twelve months, at the sum of $7200, to Roberts and Witherspoon, who were made defendants to the bill, the use and employment of the wharf granted by such lease consisting "in the mooring of vessels coming to the consignment, custody, or care of the parties of the second part (the lessees) or to either of them, and the loading and unloading of cargoes upon all vessels of this kind, with the full consent of the parties of the first part, exempt from wharf and levee dues, according to the terms of the said joint resolution."

The object of the bill filed by the appellee was to enjoin the execution of this contract, and the use and employment of the wharf described therein in the manner contemplated by it.

The claim of the complainant, Ellerman, the appellee, was based on a contract between himself and the city of New Orleans, entered into June 29, 1875. This contract purports to be a grant from the city to Ellerman, for a term of four years and eleven months from June 29, 1875, of the contract for building and repairing the wharves and levees according to certain specifications on file, and for the payment of debts contracted on account of them, and for transferring the revenues of the same for the said term, agreeable to the terms of a certain ordinance and resolution of the city, all of which are set out in the contract. The specifications state the particulars of the required repairs and extensions of the wharves. The subject-matter of the ordinance is declared to be the sale of "the revenues of the wharves and levees of the city of New Orleans, collectable under existing ordinances upon all ships, vessels, steamships, steamboats, flatboats and water-craft of any and every description, upon the terms and conditions" therein set forth. The purchaser was to assume certain specified liabilities of the city, connected with the wharves, and it was provided that the sale should be awarded to the bidder who would assume to discharge the obligations set forth, in consideration of the transfer of the revenues assigned, in the shortest time. The purchaser should be subrogated to all the rights and privileges of the city of New Orleans, to sue for and collect the revenues; and it was understood and agreed that "the city only undertakes to transfer only such rights as she possesses, and the purchaser takes the said revenues subject to all the rights now held by other persons by way of lease, privilege, contract, or by law, and the purchaser shall, in reference to them, be subrogated only to the rights of the city." It was provided that the purchaser should take possession of the wharves, landings and levees in the condition in which the same might be at the time, and should repair the same and keep them in good order and condition during the term stipulated. It was further provided that if, from overpowering force, the city should not be

able to protect the transferee in receiving the said revenues, or if they should by any such cause be diminished over one third, the transferee might, after satisfying all obligations incurred under the contract up to the time, surrender it and be discharged from further responsibility; but the city, it was expressly declared, in nowise guaranteed the payment of the wharfage and levee dues, the collection of which are to be enforced by the transferee at his own cost. The wharves and levees, which constitute the subject-matter of this arrangement, consisted of artificial improvements, made at the expense of the city, by grading, and piling securely driven, fastened, and covered with plank flooring, so as to furnish safe and convenient landings and moorings for water-craft, and places for loading and unloading their cargoes. Provision was made not only for keeping in repair the existing works and structures, but the transferee of the revenues was bound to build additional new wharves in certain specified districts of the city, if required to do so, not to exceed a named sum per annum; but if new wharves should be required in other districts by the city council at their own or the request of any other person, the party so desiring them should be bound to pay for the cost thereof, and should be entitled to receive the revenues derived from such wharves during the term of contract with the transferee, unless sooner reimbursed.

The claim of Ellerman is, that the administration of the wharves and levees within the city limits is intrusted by law to municipal government; that with this administration is coupled a franchise that the city might charge and receive a reasonable remuneration for the expense of the facilities afforded to commerce; that under this franchise the city expended out of the revenues of the corporation very large sums on the wharves and levees in permanent works and improvements, for the benefit of commerce; that, in consequence, the city had a vested right in the franchise and the revenues legitimately derived from these expenditures, of which it could not be divested by an act of the legislature, and that the appellee, by virtue of his contract, is subrogated during its term to the rights of the city.

He further claims that it is a violation of these rights for the defendants to permit the use and employment of their property as a wharf, and to charge and receive wharfage for such use, by and from persons not engaged in conducting the proper business of the railroad company, thus opening a rival wharf business in competition with the city of New Orleans and the appellee as its lessee; and that if the joint resolution of March 6, 1869, must be construed so as to confer upon the railroad company any such authority it is null and void, because contrary to that provision of the Constitution of the United States which forbids the taking of private proverty without due process of law.

It is not claimed that the city has ever used as a public wharf