Page:Harvard Law Review Volume 10.djvu/171

Rh limits to its activities or powers. Is not the vista opened by such claims plainly unbounded, as well as portentous? Who could wish to see it entered upon? No conception of judicial duty is more necessary or elementary and fundamental than that the court must await the coming of the proper suitor before exercising its powers. What proper suitor for redress or protection to the property interests of creditors, or to the interests of the State, was before the court when these receivers were appointed? Only the debtor, the defaulting, delinquent corporation, was before the court. Once for all, be it said, courts have no function except to sit still until they are moved by parties having legal rights to assert before them.

This case has been characterized by the most recent authority upon the subject of receivers as follows:—

"It is not only utterly at variance with some of the elementary rules relating to receivers, — as that they can only be appointed in a suit pending, and for the sole purpose of preserving the property in controversy, to await the judicial determination of its ownership and disposition, etc., — but, in its most favorable aspect, it makes receivers mere assignees for the benefit of creditors. That it opens the door to gross frauds upon creditors, by enabling unscrupulous manipulators of railroad property to use the power of the United States courts to stay the hands of creditors in pursuing their lawful remedies, and to carry on the business of the road while schemers force favorable compromises, is manifest. That the discretion of a single judge, however honest and capable, may be success- fully invoked, upon the application of an insolvent railroad company, to take possession of its property and operate it for an indefinite period of time, under a system which gives the court control of suits against the company even beyond its own territorial jurisdiction, and suspends the common law right to a jury trial, is startling. It is to be hoped that this decision will not become a precedent."

The same authority also remarks:—

"The appointment of a receiver upon an ex parte application be the bill is filed is error, and will be revoked upon appeal, without further considering the merits of the application."

Since the Wabash case, many like cases have arisen; and it may now be said that the practice is well established; indeed, that under like circumstances it is the almost invariable practice. By this is meant precisely, that when a railway company is in financial straits,