Page:Harvard Law Review Volume 10.djvu/174

148 pointment of receivers, but to have the most potent voice in their selection.

But perhaps the gravest question presented is of the legal or judicial wisdom and correctness of allowing an insolvent railroad company, in the absence of a bankrupt law applicable to such cases, voluntarily and against the known and obvious judgment and interests, as is often the case, of the creditors, to transfer the property which was given to secure creditors, and legally belongs to them, into the hands of courts. Interests of creditors may be conflicting; they often or generally are; but is it, under any admissible view, the right of the debtor to put the mortgaged property out of his hands, even into the hands of the court, on his own motion and with no reference to the views of creditors? If we could be certain that courts would see that no undue control of the property was thus obtained, we might still dispute the right; but when we see it resulting in injustice and open scandal, cain it be doubtful whether or not the practice is a good or safe practice?

The chief argument or defence of the practice in question offered by courts or railway corporations — the chief ground set up in the bill in the Wabash case — is the belief or fear that, if the courts do not seize the properties before default, that is, before the creditors can move, the system or consolidation of lines will be disintegrated, and great loss will thence arise. The first and obvious comment on this is that it would seem to be the concern of the creditors rather than that of the corporation or the courts. The suggestion would appear to be, in fact, a mere pretence, intended to cover designs having no reference to the welfare of creditors.

But if it be true, in such case, that loss will ensue from disintegration, — a matter always open to question, — why not leave the decision as well as its consequences to. the creditors? Do railway creditors need tutelage at the hands of the debtor and delinquent company? Are they not generally of a class and character supposed to be rather well fitted and able to care for their own interests? Why not let the default come, if come it must, and leave it unreservedly to those whose interests are largest, and most directly involved, to seek the courts, if they think best, or to keep out of the courts, if they so prefer? Does not the present practice take away their right to freedom of action and judgment in the premises? We merely advance, without answering here, these queries.

The familiar maxim that makes the enlargement of his jurisdic-