Page:Federal Reporter, 1st Series, Volume 7.djvu/761

 D. M. & M. B. cu. P. c: 4 N. W. B. 00. 749 �McCbaei, c. J. These cases are before us on motions to dismiss upon the ground that the plaintiff bas not autliorized their institution, and because the president of the plaintiff bas directed their dismissal. The suits were instituted by the general solicitor of the plaintiff corporation, without the authority of the board of directors. The president of said corporation bas directed their dismissal. It is not necessary to consider whether the president of a corporation can, -with- out the assent of the board of directors, dismiss a suit which bas been instituted by proper authority in the name of such corporation. Mucb must depend, in all such cases, upon the provisions of the charter and by-laws of the corporation, and of the statutes by which it is governed. We have examined the articles of incorporation and the by-laws of the plaintiff, the Des Moines & Mirineapolis Eailroad Company, as well as the afiSdavits submitted to us, and we find nowhere ,any authority conferred upon the general solicitor of that Com- pany tp institute a suit in its'"name. The oiffice of general solicitor is not mentioned in saia articles or by-laws, and no evidence is offered tending to show that the board of direct- ors ever took any action looking io the institution of ; these suits. In the absence of such action, and in View of the fact that the board has never -ratified the action of the solic- itor in institutirigthese' suits, we are obliged to bold that they are here without the authority or consent of 'the plaintiff^ The general solicitor, being an bfiBcer unknown to theartiicles of incorporation and the by-laws, must be reg&fded as simply the agent aiid employe of the corporation, witb authority only to execute the orders of the board of directors. It is claimed that, although the board bas taken no officiai action upon the subject, a majority of its members favor the prose- cution of these suits. If this be so, that majority can very easily find means to make it well known. The board of directors is the ultimate authority to decide this question. Wbatever action the court might take upon the present mo- tion, these suits could not be prosecuted to judgment against the wishes of a majority of the board. Nor can the president prevent their prosecution if the board decides that they shall ��� �