Lothrop v. Stedman. persons as may be interested in such assets, and divide the avails in a specified order, and be subject to the direction and control of the Superior Court for the county within which the corporation should be situate. The American National Life and Trust Company did not, prior to September 1st, 1875, supply, to the satisfaction of the commissioner, the alleged deficiency in its assets, and disagreed with that officer in regard to the amount, value and sufficiency thereof. He made preparations to take possession of the property of the company on September 1st, 1875, and prior to the investigation by the Chief Judge and his associate. The company thereupon brought a petition before the Superior Court for New Haven county, to enjoin the commissioner against his proposed action. A temporary ex parte injunction was granted, which was dissolved by his Honor, Judge Beardsley, on motion of the insurance commissioner, and after a hearing of the parties. A temporary and ex parte injunction has also been granted by Judge Robinson, of the Court of Common Pleas, upon the petition of the insurance commissioner, to restrain the directors and executive officers of the company from disposing of its assets. Sundry citizens of the State of New York who hold and own policies of insurance which have been issued by said company, or which it is liable to pay by virtue of lawful contracts heretofore entered into, have brought their bill in equity before this Court, against the commissioner and said corporation, alleging its solvency, praying that the commissioner be enjoined against taking possession of said assets, and that the company be enjoined against delivering such possession, mainly and principally upon the ground that the resolution of the General Assembly which has been quoted, and which is the foundation of the authority of the commissioner so to take possession, is void and of no effect. The reasons which are urged in support of this position will be stated hereafter. The complainants have also moved for the issuing of a provisional injunction to restrain the commis. sioner from taking possession of the assets of the company Lothrop . Stedman. until the final hearing of the bill, and, upon this motion, counsel for the complainants and for the commissioner have been heard at length. The only question now to be decided is, whether a provisional injunction should be granted. The general principles of law which are involved in this case are of great importance, and concern pecuniary interests in this country of no ordinary magnitude, and would justify me in taking more time for the consideration of this motion than I am now able to give. It is proper that the hearing which will soon take place before Chief Justice Park and his associate, in regard to the value of the assets of the company, should not be embarrassed by the pendency of any undecided motions in this Court, and it is due to the policy holders in the company, that they should be speedily apprised by the decisions of Courts in regard to the management of its property. These considerations demand a prompt decision, and prevent anything more than a succinct statement of the principles which I deem applicable to the case. It is obvious, at the outset, that the question which I am asked to determine has always been considered by Courts one of grave importance. "The right of the judiciary to declare a statute void and to arrest its execution, is one which, in the opinion of all Courts, is coupled with responsibilities so grave, that it is never to be exercised except in very clear cases; one department of the Government is bound to presume that another has acted rightly. The party who wishes us to pronounce a law unconstitutional takes upon himself the burden of proving, beyond all doubt, that it is so." (Erie & N. E. Railroad Co. v. Casey, 26 Penn. St., 287, per BLACK, J.) It should be a very clear case to justify a Court in deciding that an Act of the Legislature is invalid, upon a motion for a provisional injunction-a proceeding which addresses itself particularly to judicial discretion. The defendant corporation is a stock corporation authorized to issue life policies upon the mutual plan of insurance, but it is not strictly a mutual insurance company, and the policy holders are not necessarily members of the corporation, Lothrop . Stedman. and have no right to participate in its management. The complainants appear before the Court only as creditors of the company. Being citizens of the State of New York, they have a right to bring this bill against the defendants, citizens of Connecticut, and their interest as creditors of the corporation, and cestuis que trust of the fund which is now in the control of the directors of the corporation, entitles them to maintain their suit, if they have suffered injury. The principle, that a stockholder of a corporation cannot maintain a bill in equity against a wrong-doer, to prevent an injury to the corporation, unless it shall be averred, and shall affirmatively appear, that the corporation has refused to take measures to protect itself, does not extend to a bill which is in good faith filed by a creditor. It is suggested, that the questions in this case are the same as those which are stated in the petition of the insurance. company now pending in the Superior Court, and that they have already been virtually passed upon by the decision of Judge Beardsley. While the decision of any judge upon a motion for a temporary injunction is not a controlling authority, yet it is true, that the same general questions which are here presented were discussed in the argument before Judge Beardsley, and the fact that an eminent judge. of this State had, in effect, refused the injunction when it was urged by the insurance company, should properly lead me to exercise caution before I granted it in an action which, though brought by the policy holders, the affidavits on file in this case tend to show was instituted at the instance of the company. The counsel in the case are not seriously at issue as to the principles which are applicable to the repeal of charters by Legislatures. A charter is a contract between the State and the corporators, and the corporation takes the grant subject to the limitations which are contained in the Act of incorporation. If no power of repeal is reserved, none can be exercised; but, when the charter itself or a general statute provides that the charter is subject to repeal by the Legislature, Lothrop v. Stedman. at its pleasure, without restrictions or conditions limiting the power of repeal, the Legislature has the right to exercise its power summarily, and at will, and its action, being a legisla tive and not a judicial act, cannot be reviewed by Courts, unless it should exercise its power so wantonly and causelessly as palpably to violate the principles of natural justice, and, in such case, a repeal, like other legislative acts which do thus palpably violate the principles of natural justice, may be reviewed by Courts. The power of the Legislature, therefore, is not unlimited, for the private rights of persons are not subject to an unjust and despotic exercise of power by a Legislature, without means of redress. "The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers." (Loan Association v. Topeka, 20 Wall., 663.) It is always to be presumed that the Legislature has exercised its great powers for adequate cause, and the extreme caution with which Legislatures ordinarily act upon the subject of the repeal of charters fully warrants such a presumption. It is to be observed, that this charter, like the majority of Connecticut charters, provides that it may be repealed "at the pleasure of the General Assembly." It is unlike the charters in the Pennsylvania cases of Erie & N. E. Railroad Company v. Casey, (-6 Penn. St., 287.) and Commonwealth v. Pittsburgh & Connellsville R. R. Co., (58 Penn. St., 46,) which provided, that, if the companies should abuse or misuse their franchises the charter should be subject to repeal. There is no question here, whether the Legislature is or is not the final judge whether the contingency upon which the authority to repeal is based has occurred. The language of this charter is also unlike the charter which was examined in Allen v. McKean, (1 Sumner, 276,) which provided that the Legislature could alter, limit, restrain or annul the powers conferred, and in which case the Court held that a right of absolute repeal was not reserved. The right of repeal is here Lothrop v. Stedman. expressly reserved, is to be exercised at the pleasure of the General Assembly, and is subject only to the limitation which I have suggested. It is not material whether the Court of Probate had or had not decided that it was not expedient to appoint a trustee. That Court simply found that the company was insolvent, but that its assets were not less than three-fourths of its liabilities. The finding or the opinion of the Court did not debar the Legislature from taking such legislative action as it deemed just. A repeal of a charter does not of itself violate or impair the obligations of any contract which the corporation has entered into. But the Legislature cannot establish such rules in regard to the management and disposition of the assets of the corporation, that the avails shall be diverted from, or divided unfairly and unequally among, the creditors, and thus impair the obligation of contracts, or that the portion of the avails which belong to the stockholders shall be sequestered and diverted from the owners, and thus injure vested rights. "The capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders, and a Court of equity will lay hold of the fund and see that it be duly collected and applied. *** A law distributing the property of an insolvent trading or banking corporation among its stockholders, or giving it to strangers, or seizing it to the use of the State, would as clearly impair the obligation of its contracts, as a law giving to the heirs the effects of a deceased natural person, to the exclusion of his creditors, would impair the obligation of his contracts." (Curran v. State of Arkansas, 15 How., 312.) The Legislature has also the right, as an administrative measure, to appoint a trustee, to take the assets and manage the affairs of a corporation whose charter has been repealed, in conformity with the general, just rules which it has prescribed, or with the rules of a Court of equity, if no statutory provisions have been enacted. If no trustee is appointed by the Legislature, "a Court of equity, |