Page:Federal Reporter, 1st Series, Volume 7.djvu/397

 TATLOB V. PHILADBLIHIA & BfeADING E. 00. 885 �the new corporate body takes, with the property of the old eorporation, all franchises which had been conferred upon it, which afEect or relate to the enjoyment of that property. �" It was earnestly urged upon us, that inasmuch as an injunction against the company had ordered it and its officers to do no act which would interfere with the receivere, that theref ore it was entirely proper that the board ol managers, being in doubt as to their right, in view of that injunction to perform certain acte, should apply to the court f rom which the writ had issued forleave and instruction ; and upon this ground, also, the claim of jurisdiction in the court was stro gly pressed. In this con- nection our attention was called to the fact that the petition doea !not aver that the permission of the court, which is now asked, is neces- sary, but merely that it is proper that it should be obtained. We do not think that this application has been improperly made ; but what should bc done by the court is a different question. The court may either grant or refuse the authorization for which it is asked, but it may also decline to to act at all upon the application; and if we are right in thinking that it is without jurisdiction, the latter, in our opinion, would be the proper course. Although the petition is, in f om, that of a party under injunc- tion, asking leave to do that which, if done without such leave, he alleges might subject him to punishment for contempt, we cannot shut our eyes to the fact that a serions conflict is at the bottom of the matter, and that the court, in granting the leave asked, would be virtually deciding a contested question of great magnitude and importance. Therefore it is that we think the court should not, if of opinion that the thing proposed to be done would not be transgressive of the injuniiwn, grant leave tj do it as a thing indifferent, but should, ft>r the reason thai th<! cortem- plated act is not affected by the injunction, whollyabstain fronimaklng any order with respect to it. �" We are of opinion that the petition should be dismissed." �Thomas Hart, Jr., John G. Johnson, and James E. Gowen, for petitioners. �John J. McCook, Ashbel Green, and John G. Bullitt, for op- posing shareholders. �McKennan, 0. J., (orally.) In the present condition of my mind I must refuse this application. The custody of the property of this railroad devolves upon the receivers ap- pointed by the court. They are custodians of it for the benefit of the creditors. As the object of the whole'proceed- ing is the preservation of the property for the benefit of the creditors, I do not think the court has any other function to exercise than that which wili assist in carrying out the object to which I have ref erred, nor do I think that the court should stretch its power beyond that, however desirable it might bc �v.7,no.4— 25 ��� �