Gregg v. Mayor of Baltimore

Tuck, J. The members of the court being equally divided in opinion on the motion to dismiss the appeal, and also on the propriety of the order appealed^ from, it must be affirmed. Hatton vs. Weems, 12 G. & J., 83 . ⁵⁰⁴ Under such circumstances it. is not usual to file opinions, but, in view of the public and private interests involved, and the importance of having the asserted power of the railroad company to declare dividends of this kind, examined and passed upon, in a cause which, by its proceedings, shall embrace all persons interested in having that question authoritatively determined; and supposing that the progress of the cause may be facilitated, I have felt myself warranted in expressing my opinion on the question of parties, which has been fully argued, and which, possibly, may come before us again, that being the only point now before us for review. I have carefully examined the cases and books of practice and pleading, referred to in argument, and have come to the conclusion that the opinion of the court below correctly states the manner of making new parties in equity, and being of opinion that this is not a case where, in the absence of precedents, one should be made by granting the prayer of the petitioners, the order appealed from should be affirmed. The suggestions as to inconvenience, and probable loss, resulting from the circuity of proceeding, that the order may occasion, if it should appear, ultimately, that the appellants are entitled to receive the dividends they claim, are entitled to great consideration, and if I felt authorized to yield my assent t.o such arguments, I have every disposition to do so; but the same may be said in many other cases.

Indeed, in most, there might be devised a short, easy and expeditious method of arriving at judicial conclusions, and much loss prevented by avoiding the delays incident to proceedings as now conducted, but experience has taught that it is safer, looking to the ends of justice and orderly procedure in our courts, to adhere to the practice and forms which have obtained from the earliest times. Otherwise, and this, I am admonished, might be the result here if the prayer were granted, embarrassment and confusion may be the consequence. Rules of practice are a part of the law governing all judicial tribunals. When parties sue, they form their pleadings and conduct their causes with reference to such principles, and have a right to require that they shall be observed on the opposite side.

There may be cases ⁵⁰⁵ in which they should be relaxed or departed from. Some such have been cited, but they are exceptions to the general practice, where no other remedy was open to the parties. The allegation of fraud and collusion in the petition having been denied, I treat the question as if it had not been made. But, while I agree that the appellants had no right to be made parties in the manner proposed, and that, therefore, there was no error in dismissing their petition, I am of opinion' that no decree can properly pass adversely to the alleged rights of stockholders in the predicament of the appellants; that is, of such as claim the dividends, unless they, or a sufficient number of them to represent that interest, are made parties.

This I consider a plain proposition. The corporation does not represent the appellants any more than it does the complainants. The President and Directors bind the members, when acting within the charter powers; if they go beyond, the members may enjoin them, and the bill here is framed on the supposition that the dividends are not warranted by the charter. If some