gated. Mills, Em. Dom. § 202; Covington Street R. Co. v. Covington, 9 Bush, 127. All the questions involved in this case were necessarily decided by this court in Spencer v. Point Pleasant & 0. R. R. Co. 23 W. Va. 406. In that case, however, no question was raised as to the right of the railroad company to occupy the street; and therefore, in deference to the very earnest and ingenious argument of the counsel for the appellee, I have deemed it proper to consider, as I have done, the grounds upon which that right is founded. But while the right was conceded and not discussed in that case, it was involved and of necessity decided. In the case before us, it appears that 20th Street is not materially obstructed, nor is its usefulness unnecessarily or unreasonably impaired. The facts show that the present width of the graded portion of the street in front of the plaintiff's property is only twenty-four feet, and that after the proposed excavation is made for the defendant's railroad the unobstructed portion of the street will still be twenty-two feet, thus showing that but two feet of the present open and graded part of the street will be occupied by the railroad. As before stated, There the railroad company, with the conthere is nothing in the record of this case to sent of the municipal authority, constructed show that this is either an unnecessary or un-along in the center of one of the public streets reasonable appropriation or use of the street; of the town an approach to a railroad bridge, and therefore we must hold that it is author- consisting of trestle work and masonry, upon ized by the statute, and the use and occupation which the track of the railroad was laid several of it by the railroad company in the manner | feet above the surface or common level of the aforesaid will not constitute a nuisance. Perry street. Spencer, an abutting lot owner, sought v. New Orleans, M. & C. R. Co. 55 Ala. 413; 2 by injunction to restrain the railroad company Dillon, Mun. Corp. §§ 711, 564. from constructing its approach in front of his 2. After what has been said in the preceding lot until compensation should first have been portion of this opinion, very little discussion is made to him as the owner of the fee in the required to show the untenableness of the sec-street. This court decided that such use and ond proposition of the appellee, viz., that the occupation of the street by the railroad comappropriation of a portion of 20th Street by the pany was not a taking of the plaintiff's propcity to the exclusive use of the railroad consti-erty, and that he was not entitled to an injunctutes an abandonment by the city of its ease- tion to prevent the construction of said approach ment in that portion of the street, and conse- until the damages he might sustain should be quently the title reverts to the plaintiff as the ascertained and paid. The second and sixth owner of the fee. It might be a sufficient an-points in the syllabus of that case are as folswer to this claim to urge that the record does lows: not show that the plaintiff is the owner of the fee in this street. It is true his bill avers that he is such owner, but the answer of the defendant denies this averment and there is no proof to sustain it. But for present purposes we will assume that the plaintiff is the owner of the fee in the street subject to the easement in the public. The use by a railroad, under legislative authority, of the street of a city in its ordinary use as a means of travel and transportation, is not an abandonment or perversion of the street from its original purposes. Time, the unerring test in the utilization of new discoveries, has demonstrated that long and connecting 6. But such lot owners, whether they own lines of railroad greatly facilitate and cheapen such fee in the street or not, may, by an action transportation. To construct and operate such at law, recover of such railroad company such lines it is necessary that cities shall be trav- damages as they might have recovered in a ersed by them. The city is necessarily trav-common-law suit had the railroad company ersed by and through its streets; and by laying a railroad track through or along a public street, the use and comfort of the latter as a highway must be somewhat impaired. When this is done under proper authority, it is but the assertion of so much of the sovereign power and discretion, by which one right or easement is abridged in its enjoyment that the public may have another deemed to be of greater value. Perry v. New Orleans, M. & C. R. Co. 55 Ala. 413, 424; Porter v. North Mo. R. Co. 33 Mo. 128. This doctrine is especially true in this State, because our Constitution, art. 12, § 9, expressly declares that all railroads shall be public high ways, free to all persons for the transportation of their persons and property. The use of a street, therefore, in this State by a railroad for its track is not an abandonment of the easement, but simply the imposition of an additional servitude for the benefit of the public. "2. If a railroad company, without taking the land, damages it by the construction of its road, the owner of such land cannot, as a matter of right, enjoin said company so proceeding with the construction of its road till such damages are ascertained and paid; for section 9 of article 3 of our Constitution, while it gives a right in such cases to recover of a railroad company such damages in an action at law, does not give a right to such injunction, as it does not require such damages to be paid or secured to be paid before such damages actually arise by the construction of the road." built its road in said street without proper authority; for while such railroad company has built its road by proper authority, conferred directly by the Legislature or by a town council authorized so to do by the Legislature, it cannot be regarded as committing a nuisance in so building its road and using it in a careful and proper manner. Yet under section 9 of article 3 of our Constitution said railroad company is liable for the permanent damages it inflicts on such adjoining lots, in the same manner as if it had built its road without such proper authority; but after it has once been sued for such damages it is not liable to be sued for the nuisances which necessarily result from the running of its cars through such street, for in so doing it is only exercising its rights and is not committing a nuisance.” The only qualification of the general rule thus announced is that where the property of the lot or land owner, though not actually appropriated by the railroad company for its uses, is nevertheless as effectually destroyed in value as if it had been in fact taken by the company for the construction of its road, the owner of the property so destroyed may obtain an injunction to restrain the company until the damages are paid or secured to be paid. Mason v. Harper's Ferry Bridge Co. 17 W. Va. 396. In the case before us, whatever may be the character and extent of the damage to the property of the plaintiff by the construction and operation of the railroad in the manner proposed by the defendant, it is quite certain that it will not amount to such an absolute destruction of the value of the property as will be equivalent to a virtual taking of it; and therefore, according to the decision of this court in the aforesaid case of Spencer v. Point Pleasant & O. R. R. Co. the plaintiff was not entitled to an injunction to restrain the defendant from the construction of its road along 20th Street in the manner it claims the right to do in its answer, and consequently the circuit court erred in refusing to wholly dissolve the injunction. The question as to whether or not the plaintiff is entitled to damages for the injury, if any, done to his property by the construction and operation of the defendant's railroad along 20th Street, or the extent of said injury and the amount of said damages, do not arise in this suit; because, for the reasons before stated, his redress for such injury and the recovery for such damages must be sought by him in a proper action at law after he has sustained the damages by the actual construction of the railroad. It necessarily follows from this conclusion that the circuit court also erred by its order of April 6, 1889, setting aside the order of March 9, 1889, modifying the injunction so as to allow the defendant to proceed with the construction of its road upon giving bond, etc. The injunction itself being improper, every act or order suspending its operation or destroying its effect would diminish the error, while the setting aside of such order would of course prejudice the right and increase the wrong. For the reasons aforesaid, I am of opinion that so much of the aforesaid order of March 9, 1889, as overruled the defendant's motion to dissolve the injunction, and the whole of said order of April 6, 1889, should be reversed; and this court proceeding to enter such order and decree as the Circuit Court should have entered, it is ordered that the injunction awarded the plaintiff on March 2, 1889, be wholly dissolved and the plaintiff's bill be dismissed with costs. Green, English and Brannon, JJ., concurred. The prohibition of the New York statutes applies only to domestic corporations (Coats v. Donnell, 94 N. Y. 168); and moneyed corporations include insurance companies. Hill v. Reed, 16 Barb. 280; Hurlbut v. Carter, 21 Barb. 221. The law seems to be well settled that the capital stock and other property of private corporations, especially after their dissolution, is treated as a trust fund in favor of creditors. Mumma v. Potomac A corporation may make an assignment under Co. 33 U. S. 8 Pet. 281 (8 L. ed. 945); Vose v. Grant, 15 the Statute of Missouri relating to voluntary asMass. 505; Spear v. Grant, 16 Mass. 9; Lyman v. Bon-signments; and where the powers of a corporation ney, 101 Mass. 562; Brewer v. Boston Theatre, 104 Mass. 378; Bartlett v. Drew, 57 N. Y. 587, 60 Barb. 648; Hastings v. Drew, 76 N. Y. 9; Goodin v. Cincinnati & W. Canal Co. 18 Ohio St. 169. are vested in a board of directors, they may, unless restricted, do whatever the corporation might do. Hutchinson v. Green, 6 West. Rep. 834, 91 Mo. 367; Descombes v. Wood, 8 West. Rep. 616, 91 Mo. 196. Assignment giving preferences. A general assignment without any intent of giving preferences, and for the equal benefit of all creditors, is a proper and legal act, and within the corporate powers of moneyed corporations. Bow-out the sanction of the judge, will not prevent the ery Bank Case, 5 Abb. Pr. 415, 16 How. Pr. 56; Hurlbut v. Carter, 21 Barb. 221; Hill v. Reed, 16 Barb. 280; Curtis v. Leavitt, 15 N. Y. 110. A creditor's bill, under the Act of 1881, filed with making of an assignment giving preferences, made prior to the sanctioning of the bill. Knoxville Iron Co. v. Wilkins, 74 Ga. 493. liabilities, on the 25th day of June, 1884, made | pany, defendant, being insolvent, resolved to an assignment to F. W. Browne for the benefit make a general assignment of its property for of its creditors. The assignment was duly filed the benefit of its creditors, and resolved to in the probate court, and thereafter Browne was give a mortgage on the same property to the removed and George L. Rouse appointed plaintiff, and other mortgages to other credtrustee to administer the assignment. itors, which mortgages should have preference over the assignment, and appointed F. W. Browne assignee." The Merchants National Bank of Cincinnati, claiming to be a creditor of the corpora tion, and that the debt due it was secured by a chattel mortgage upon the property assigned, presented its claim to the trustee for allow ance, and the same having been rejected by him, the original action was brought by the bank in the Superior Court of Cincinnati, to compel the trustee to allow the claim in the settlement of the trust, and to establish the priority of the mortgage lien. "The deed of assignment was executed and delivered to the said F. W. Browne, who drew all the instruments and acted as attorney for the company in the whole matter as well as assignee, on the 24th June. Before the execution of the assignment, the mortgage was drawn, but a blank was left therein for the insertion of the amount secured by it. Next day, the 25th of June, the mortgage was completed and executed, and immediately thereafter the other mortgages were completed and executed, the whole being done at one sitting. The petition of the bank alleged that the corporation, being indebted to it in the sum of $6,000 on six promissory notes particularly described, "by a resolution of its board of di- "The property was described in the body of rectors, duly passed, authorized T. J. Notting the mortgage as 'the goods and chattels deham, its president, to execute and deliver to scribed in the schedule hereunto annexed,' and this plaintiff a chattel mortgage" upon certain was signed, not at the close of the body of the described property, and thereupon a chattel mortgage, but at the end of the schedule, and mortgage was regularly drawn and executed the signature was there affixed for the purpose conveying said property to the plaintiff to se- of authenticating and executing the mortgage. cure the payment of the six promissory notes. . . On the 25th of June, the completed mortas herein before set forth. The petition further stated that the required affidavit as to the amount and justice of the claim was made and the mortgage duly filed. It also alleged that a demand had been made upon the trustee for the payment of the claim, which was refused although he had sufficient funds in his hands to pay the same. Judgment for the amount of the claim was therefore demanded. The answer denied the indebtedness of the corporation to the bank and the due execution of the chattel mortgage. It further averred that the board of directors of said company had no authority to order a chattel mortgage to be given to the plaintiff to secure the individual debt of T. J. Nottingham, and alleged that said chattel mortgage was void and in fraud of the rights of the general creditors. The case was heard upon the pleadings and evidence, and then reserved to the general term for decision, where, at the request of counsel, the court stated its findings of fact and conclusions of law separately as follows: That on the 23d day of June, 1884, the T. J. Nottingham Manufacturing & Supply Com Where an insolvent corporation mortgaged all its real and personal property to a trustee to secure certain specified debts, and pledged all its notes and accounts to another creditor, to secure his claim, but it was not the intention in either case to make an absolute conveyance of the property, it was held that, although the two transactions be regarded as one, they did not amount to an assignment which would be void because of preferences. Garrett v. Burlington Plow Co. 70 Iowa, 697. In Wisconsin a stockholder, director or officer of a corporation making an assignment may be a preferred creditor for wages earned by him as a laborer, servant or employé of the corporation, under chap. 349, Laws 1883. Conlee Lumber Co. v. Ripon Lumber & Mfg. Co. 66 Wis. 481. The salary of the manager of a lumber and manufacturing company is the " wages " of an "employé," within the meaning of this chapter. lbid. gage was filed in the recorder's office of Hamilton County, where chattel mortgages executed in Cincinnati by residents thereof are required by law to be filed, and on the same day, one hour or two later, the assignment was filed with the judge of the probabe court. "The amount due the plaintiff on the first day of this term, secured by said mortgage, is $6,542.41; F. W. Browne, assignee, was removed, and George L. Rouse, defendant, was appointed trustee in his place. The property has been sold and the proceeds are in the hands of said trustee. The plaintiff presented his claim to said trustee and demanded its allowance and payment, all of which the said trustee refused. "As conclusion of law the court finds that the mortgage is a valid instrument, and has preference over the assignment, and the plaintiff is entitled to the payment thereof from the proceeds of the mortgaged property. "To all of which findings the defendant then and there excepted; and thereupon the defendant made and filed a motion to set aside the said findings, and for a new trial, which motion was by the court overruled, to which action of Insolvent laws; conflict of. The insolvent laws of a State have no extraterritorial effect. Glenn v. Clabaugh, 7 Cent. Rep. 391, 65 Md. 65. A voluntary assignment made in another State will pass personal property in this State as against a subsequent attaching creditor resident here, if the assignment be such as would be upheld and enforced if made in this State. Coflin v. Kelling, 83 Ky. 649. But a voluntary assignment made in New York, and valid there, is not valid in this State against an attachment, if such assignment is one which, if made between citizens of this State, would be inoperative for want of compliance with legal requisitions. Faulkner v. Hyman, 2 New Eng. Rep. 181, 142 Mass. 53. the court the defendant then and there excepted. "It is therefore considered by the court that the plaintiff recover from the said trustee, from the said proceeds in his hands, $6,542.41, with interest at 6 per cent per annum from the first day of February, 1886, and that the cost of this action be paid from said proceeds, and that this judgment be certified to the probate court." Whereupon the trustee took this writ. Messrs. Lincoln, Stephens & Lincoln, for plaintiff in error: The capital stock of a corporation is a trust fund pledged to the payment of the debts of the corporation. Morawetz, Priv. Corp. 1st ed. 574, 575, 581, 582; Field, Corp. § 365, p. 517, and case cited; 2 Waterman, Corp. § 208, pp. 120, 121; Iron City Nat. Bank v. Falls Wire Mfg. Co. 19 W. L. B. 254. An insolvent corporation, which has quit its business, cannot make a valid preference of creditors. Wood v. Dummer, 3 Mason, 308; Marr v. Bank of West Tenn. 4 Coldw. 471; Morawetz, Priv. Corp. 1st ed. § 581, 582; Sawyer v. Hoag, 84 U. S. 17 Wall. 610 (21 L. ed. 731); Robins v. Embry, 1 Smedes & M. Ch. 263. Catlin v. Eagle Bank, 6 Conn. 240, 241, which is the foundation for authorities supposed to have established a different rule, was decided upon the peculiar terms of the charter of that bank. Messrs. Watson, Burr & Livesay and Albery & Albery, also filed a brief for plaintiff in error, contending that no insolvent debtor had a right to make preferential mortgages as part of a scheme for the general disposition of his property for the benefit of creditors. Mr. John W. Herron for defendant in error. Williams, J., delivered the opinion of the court: The general question for decision in this case is, whether a corporation for profit, organized under the laws of this State, can, in the disposition of the corporate property, after it has become insolvent, and ceased to further prosecute the objects for which it was created, prefer some of its creditors over others. The claim of the plaintiff in error is that, when the corporation becomes insolvent and ceases to carry on business, its property and assets constitute a trust fund for the benefit of its creditors, and the directors in possession of the corporate property, being trustees for all the creditors, cannot lawfully dispose of it otherwise than for the equal benefit of all the corporate creditors. The defendant in error, on the other hand, contends that, when not restricted by the law of their creation, or prevented by the operation of some bankrupt or insolvent law, insolvent corporations may, the same as natural persons, make preferences among their creditors. Decisions of courts will be found, maintaining each of these diverse positions. The precise question has not been decided in this State, and, in view of the conflict of authority elsewhere, we are at liberty to adopt that rule which best harmonizes with the policy and legislation of the State, rests upon the sounder reason, as we conceive it to be, and coincides with our sense of justice and right. The right of the individual debtor to prefer one creditor to another, though at the time insolvent, rests upon his complete dominion over, and consequent unrestricted power of disposi tion of his property. And the cases which hold that insolvent corporations are entitled to make preferences among their creditors, attribute to them the same unlimited control over their property that is possessed by individuals over theirs. In Catlin v. Eagle Bank of New Haven, 6 Conn. 233, which is the leading case in this country maintaining the right of an insolvent corporation to prefer one or more of its creditors over others, the decision is distinctly placed upon the ground that the particular corporation was invested with the control and power to dispose of the corporate property, as fully and to the same extent that natural_persons have with respect to their property. Hosmer, Ch. J., in the opinion in that case says: "If the corporation, so far as regards its right to manage and dispose of its property, has power analogous with that which is vested in an individual, the plaintiff's bill is wholly destitute of merits. . . . The cases of an individual and of a corporation in the matter under discussion, it appears to me, are not merely analogous, but identical; and I discern no reason for the slightest difference between them.' And again he says that "no express trust was created on the happening of the bank's insolvency; but the charter, on every fair principle of construction, conferred on the corporation the entire control of its property, as well after, as before, this event. . . The insolvent banking corporation is just as much a trustee of the creditors, and no more, as the insolvent individual is the trustee of his creditors. The relation of creditor and debtor exists in both cases; but from this relation no trust arises." We have not the charter of the corporation in question in that case before us, but assume that the learned judge was correct in saying that by every fair construction it conferred upon the corporation the entire control of its property after its insolvency; if so, no fault need be found with his conclusion, that it might, like any individual, prefer some of its creditors over others. Corporations generally do not possess such amplified powers, and especially those created under the laws of this State. In this State corporations have not the same powers and capacities as natural persons, but are authorized for specified and defined purposes. They are clothed with those attributes only with which the law under which they are created invests them, and can exercise no powers not expressly conferred, or necessary to carry into effect those in terms granted. Since the Constitution of 1851, it has been the settled policy of this State to afford adequate protection to the creditors of corporations. That Constitution contains the provision that "dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to | poration, out of which grow the duties of the a further sum, at least equal in amount to such latter to so administer the trust as will best prostock." mote the interests of the former, to pay them their appropriate dividends from time to time, and, upon the termination of the corporation, to distribute to them their respective shares of the corporate property, after the payment of its debts and liabilities. These duties are eminently of a fiduciary nature. It is now so well established as to be no longer a subject of controversy, that the relation of trustee and cestui que trust subsists between the directors and shareholders. And, since the directors, as such trustees, represent and act for all the shareholders, they cannot lawfully favor any particular shareholder or class of shareholders; but every authority and power possessed by them must be exercised for the benefit of all alike. Otherwise no corporation could endure. Legislation, under this Constitution, has been shaped to fully effectuate the constitutional guarantee. All corporations organized for profit are required to have a capital stock, 50 per cent of which must be subscribed, and at least 10 per cent paid in, before the organization can be effected; and the stockholders are made liable, in addition to their stock, to an amount equal to the stock held by them, to secure the payment of the debts of the corporation. This liability, it has uniformly been held by this court, is a security exclusively for the benefit of the creditors of the corporation, over which the corporation has no control; and, moreover, this security is for the equal benefit of all the creditors. The suit to enforce it must be by all the creditors, and against all the stockholders; and no creditor can acquire priority over the others with respect to it. And, while power is conferred on corporations to reduce their capital stock, it is expressly provided that the rights of creditors shall not be affected, nor in any way impaired. The corporate powers, business and property of the corporation, must be exercised, conducted and controlled by a board of directors, all of whom must be stockholders; and, as a still further guarantee for creditors, the powers of corporations over their property, its use and disposition, are so circumscribed by positive statute, that no corporation can employ its stock, means, assets or other property directly or indirectly for any other purpose whatever than to accomplish the legitimate objects of its creation. The extent of the powers expressly conferred on them are to sue and be sued, contract and be contracted with, and acquire and convey such real and personal estate as may be necessary or convenient to carry into effect the objects of the incorporation, to make and use a common seal, and do all needful acts to carry into effect the objects for which they are created. It is obvious that the corporate property cannot with propriety be said to be owned by the corporation in the sense of ownership as applied to property belonging to natural persons. The latter may, without restriction, acquire and dispose of property for any lawful purpose, while both the power of acquisition and disposition of the former are limited to the special objects already mentioned. The corporate property is in reality a fund set apart to be used only in the attainment of the objects for which the corporation was created, and it cannot lawfully be diverted to any other purpose. As soon as acquired, it becomes impressed with the character of a trust fund for that purpose, and the shareholder or creditor may interpose to prevent its diversion from the objects of its incorporation injurious to them. Taylor, Priv. Corp. § 34. The custody and control of the property, and the management of the business of the corporation, are confided to a board of directors chosen by the shareholders. Into the hands of these officers, through whom alone corporations can act, the shareholders surrender their funds, and intrust the management of the affairs and property of the corporation to them. A relation of trust and confidence therefore arises between the stockholders and directors of a cor If the directors and officers of a corporation were allowed, in the conduct of the business and disposition of the property, to favor one or more shareholders to the detriment of the others, the minority would be the prey of the majority; for, it would then be within the power of the majority to combine and elect the of ficers, who in turn should manage the whole business and apply the whole corporate property for the benefit of the majority, and thus practically confiscate the entire property interest of the minority. Corporations would thus become traps for the unwary, and legalized instruments of fraud. The doctrine that the directors are trustees for the shareholders, and for the equal benefit of all, it is obvious, is essential to the existence of corporations. But, it.is the right of the creditors, equally with the shareholders, to have the corporate property applied to the purposes for which the corporation was created, and this includes the payment of the corporate indebtedness contracted in the prosecution of its business. The rights of the creditors to the corporate property, so far as it is necessary to meet their demands, are superior to those of stockholders. In Perry on Trusts, § 242, the relative rights of the creditors and shareholders are thus defined: 'A corporation holds its property in trust, first to pay its creditors, and second to distribute to its stockholders pro rata. If therefore a corporation should dissolve, and divide its property among its shareholders without first paying its debts, equity would enforce the claims of its creditors by converting all persons, except bona fide purchasers for value, to whom the property had come, into trustees, and would compel them to account for the property and contribute to the payment of the debts of the corporation to the extent of its property in their hands." It is now firmly established that the property and assets of a corporation are a trust fund for the payment of its debts, especially in case of its insolvency. Since the case of Wood v. Dummer, 3 Mason, 311, where Mr. Justice Story is said to have first formulated the doctrine, it has been generally accepted, and is sustained by the highest authority. Mr. Justice Swayne announces it with great clearness, in Sanger v. Upton, 91 U. S. 56, 60 [23 L. ed. 220, 222] as follows: "The capital stock of an incorporated company is a fund set apart for the payment of its debts It is a substitute for the personal |