Middletown National Bank v. Toledo, Ann Arbor & Northern Michigan Railway Co.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court. The questions propounded by the Circuit Court of Appeals are the following: First. Whether Article 13, section 3, of the constitution of Ohio is so far self-executing that .it may be enforced outside of the jurisdiction of said State without compliance with said requirements of section 3260 of the Revised Statutes of. said State as amended in 1894. Second. Whether Article 13, section 3, of the constitution of Ohio is so' far self-executing that it may be enforced outside of the jurisdiction of said State without compliance with said requirements of section 3260 of the Revised Statutes of said State as amended in 1900. The counsel for the complainant contends that the article of the. Ohio constitution, above set- forth, is self-executing to the extent of declaring the general contractual obligation and the general rule as to property rights, and it is insisted that the liability of the stockholders in the railway corporation may be enforced by the courts of another jurisdiction without bom.pliance with the requirements of any of the statutes which have been passed by the legislature of Ohio in regard to the enforcement of the liability provided for in the constitution. These statutes, it is said, refer only to the form and mode of procedure in local courts, and neither of them contains any limitation or condition imposed upon the substantive right declared by the constitution, as construed and enforced by *404 the Ohio courts for many years prior to the statutory enactments. We have not been referred to any decision of the Ohio Supreme Court directly involving the question whether the provision of the constitution referred to is self-executing or not. If there were any such decision we should follow it. That court has, however, regarded the liability of stockholders as statutory in its nature, as is seen from its decisions in the cases hereinafter cited. The question has arisen in some of the other States regarding this same provision, and it has been held to be not self-executing. Barnes v. Wheaton, 87 Supreme Court Reports of New York (80 Hun, 8). In that case it was held by the then General Term that it was obvious that the provision was not self-executing, but its purpose was to confer upon the legislature the power and impose upon it the duty of securing dues from corporations by imposing upon the stockholders of such corporations as are organized under the laws of that State an individual liability, and by such other means as, in its discretion, it should deem proper, but limiting such power and discretion by the provision that each stockholder should be made liable to an amount at least equal to the amount of stock held by him. This provision was not regarded as imposing a liability independent of the statute, nor as conferring upon the plaintiff any right to maintain the action then before the court. It has been held substantially to the same effect in Nimick & Co. v. Mingo Iron Works Co., 25 W. Va. 184. But whether the constitutional provision might be regarded as, to a certain extent, self-executing in the absence of any statute on the subject, we find that the legislature of Ohio has passed statutes to enforce such liability. The cases of Wright v. McCormack, 17 Ohio St. 86, and Umsted v. Buskirk, 17 Ohio St. 113, were both brought under a statute enacted to provide a method for enforcing the constitutional liability, and in the former case the court speaks of the liability of the stockholders, as a “statutory liability,” and of the statute itself as a “statute *405 under which the liability ’arises.” That'was an early statute, passed not long ¿fter the adoption of the constitutional provision, and for the purpose of. executing it. 50 Ohio L. 296, passed May 1, 1852. Wright v. McCormack was approved in Umsted v. Buskirk, supra. Subsequent statutes were passed for the same purpose of enforcing the liability of stockholders, and those set out in the record not pnly definitely state the liability, but give the procedure and provide the remedy in order to enforce it. It will be seen that the constitutional provision refers in terms to the securing of dues from corporations by the individual liability of stockholders • and by such other means as may be prescribed by law. The constitution evidently looks to the legislature: for-providing-.means. A statute which is passed in pursuance of such a provision and which itself provides for the procedure and state's the remedy, even though imposing no limit or conditions in regard to such liability other than such as are found in the constitutional provision itself, is, nevertheless, a statute'providing a remedy which is to be followed within the principle sustained by the authorities cited below. The statute under such circumstances may be said to so far provide for the liability and to create the remedy, as to make it. necessary to follow its provisions and to conform to the procedure provided for therein. See Pollard v. Bailey, 20 Wall, 520, 526; Fourth National Bank v. Francklyn, 120 U. S. 747, 756, 758; Evans v. Nellis, 187. U. S. 271; Morley v. Thayer, 3 Fed. Rep. 737, Circuit. Court, District of Massachusetts; Cleveland &c. Ry. Co. v Kent, 94 N. Y. Supreme Court Reports (87 Hun), 329; Nimick v. Mingo Iron Works Co., supra. In Bank v. Francklyn, supra, Mr. Justice Gray, speaking for this court, -Said: “In all the diversity of opinion in the courts of. the different States, upon the question how far a liability, imposed upon stockholders in a corporation' by the law of the State which creates it, can be pursued in a court -held beyond, the -limits of that State, no case has been found, in which such a liability has been enforced by any cóurt, without a compliance with the conditions *406 applicable to it under the legislative acts and judicial decisions of the State which creates the corporation and imposes the liability. To hold that it could be enforced without such compliance would be to subject stockholders residing out of the State to a greater burden than domestic stockholders.” In order to comply with the conditions of the statute of Ohio it seems plain from the provisions of the statute that the action must be brought in that State. In the case now before us the complainant has paid no attention to the statutes of Ohio, so far as bringing suit in that State is concerned, and therefore has not followed the provisions contained in them. It has commenced no action in the' State of Ohio, but, on the contrary, assumes to ask the Federal Circuit Court in New York State to administer the relief asked for in its bill, against stockholders who are residents of New York, the same as if the suit had been commenced in Ohio. This, we think, the complainant could not do. By the terms of the Ohio statute, properly construed, the remedy must be pursued in the- courts of that State. The case of a plaintiff failing to obtain satisfaction of his judgment by following, in Ohio, the remedies given by the Ohio statute, is not before us, and we need not determine the character of any other remedy, or where it may be enforced. We therefore answer the first question in the negative. It is unnecessary to answer the second question. The answer will be certified to the Circúit Court of Appeals for the Second Circuit. So ordered.