Opinion
12-20-1887
In re DELAWARE BAY & C. M. R. Co.
W. H. Hilliard, for petitioner. B. W. Edmunds and S. H. Grey, for defendants.
Petition for receiver. On rehearing. For former opinion, see ante, 261.
W. H. Hilliard, for petitioner. B. W. Edmunds and S. H. Grey, for defendants.
BIRD, V. C. I consented to rehear this case. The defendants came in, and said that they had been surprised, and expressed the conviction that all the points which they were entitled to be heard upon had not been fully presented to nor considered by the court; either of which, in matters of so much importance, is sufficient to warrant the court in hearing a reargument.
The first point presented in resistance to the petition is that the court has not jurisdiction, because of the person or officer of the court to whom the petition was presented, and before whom the argument was had. Clearly, this point in the case should be disposed of at the threshold. It is quite useles for the court to climb and club unless it can collect and conserve the fruit of those labors. It is said that in such a case the application must be made to the chancellor, and, because that is the direction of the statute, the petition cannot be presented to a vice-chancellor, nor heard by him. The defendants did not see fit to depend upon this want of jurisdiction, but presented themselves before the vice-chancellor, following the counsel of the petitioner in an elaborate effort, by the production of witnesses, and argument in resistance to the insistment of the petitioner; thus casting their case, and all the consequences thereof, upon the court, without once questioning the right or power of the vice-chancellor to hear the case for the chancellor, and to advise an order or decree therein. Therefore it might with great propriety be said that the question of jurisdiction is presented too late to receive the attention of the court.But, if the objection is to be considered at all, it may well be asked, why is it claimed that there is any distinction between the chancellor and the court of chancery? It may well be asked whether or not the chancellor can do anything except as he represents the court of chancery, or whether he can do anything in the court of chancery except he does it as chancellor? I am unable to make any distinctions whatever between authority conferred upon the chancellor and authority conferred upon the court of chancery, when the authority conferred pertains to the exercise of equitable or judicial powers or functions. The constitution says "that the court of chancery shall consist of a chancellor." Now, if the chancellor is called upon to act in any judicial capacity whatsoever by that name, he can only act as the head or representative of the court of chancery.
In the next place, it is claimed that, this authority conferred being personal or individual, the chancellor cannot delegate the power. It inheres in him alone, by express legislation; not more so, certainly, than any other act which he is called upon to perform in his capacity as chancellor, with reference to the court of chancery. The act creating vice-chancellors declares that the chancellor may refer to the vice-chancellor any cause or other matter which may at any time be pending in the court of chancery, to hear the same for the chancellor. Now, this particular matter is pending in the court of chancery; and the chancellor, under this act, had a right to refer it to a vice-chancellor, to be heard, not for the court of chancery, but to be heard for the chancellor. The same act provides that "the chancellor may make all such general rules for the effectual execution and carrying out of this act as he shall deem necessary and proper." And the eleventh rule of the court of chancery provides for motion-days, fixing time and place, and declares that all motions on such days can be heard by the chancellor, or one of the vice-chancellors; one of whom will attend for that purpose. This particular matter was first presented upon a motion-day, and the hearing commenced before one of the vice-chancellors upon such motion-day. It was, like every such case, heard for the chancellor; and if an order or decree be advised by the vice-chancellor, and signed by the chancellor, it will become effectual, not because it was heard by the vice-chancellor, for and on his own account as such vice-chancellor, but because it was and is signed by the chancellor, as such, by force of the provision of the act of the legislature establishing and authorizing such action upon the part of vice-chancellors; becoming, thereby, the acts of the chancellor himself as effectually, to all intents and purposes, as though he had heard the case himself from the beginning.
Upon this same branch of the discussion, it is insisted that all the labor which has been had in this case, and which must follow if these proceedings now instituted be continued, has been and will be for naught, because the case is being heard in the court of chancery, and not by the chancellor, and, being so heard in the court of chancery, every step is nugatory and void; and that, if the chancellor were to attempt to recognize or enforce it, he could not do so, because of the fact that it is an effort of the court of chancery to perform an obligation which the statute has imposed only upon the chancellor. The effort i3 made to make it appear that the head is no part of the body.
That I regard the other points discussed on the rehearing of great importance is shown by the fact that I at once allowed the rehearing; but, upon careful consideration, my judgment still is the same as expressed in my former conclusions.