[226 U.S. 455, 456] Messrs. Edgar Allan Poe, J. Kemp Bartlett, L. B. Keene Claggett, and R. Howard Bland for plaintiff in error.
[226 U.S. 455, 457] Messrs. Wilton Snowden, Jr., and Vernon Cook for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This is an action brought by the plaintiff in error as a creditor of the South Baltimore Steel Car & Foundry Company to recover its claim from the defendant, a holder of stock in that company, the subscription for which had not been fully paid. The action was begun on February 26, 1908, and at that date it could be maintained. But in April a statute was enacted (act of 1908, chap. 305) [226 U.S. 455, 458] making the stockholder's liability assets of the corporation, saving the rights of creditors at the date of the act, but providing that the exclusive remedy for such rights, as against Maryland stockholders, should be by bill in equity on behalf of such creditors as might come in. This provision was made operative as of July 1, 1907, and was to cause all actions at law of this kind brought since then to abate, saving the right to become party to a bill. On this statute the defendant moved to dismiss the suit. The motion was granted and the judgment was affirmed by the court of appeals, which sustained the constitutionality of the act as so applied. 113 Md. 77, 77 Atl. 255.
Of course the objection is that the law impairs the obligation of the plaintiff's contract. If the stockholder's liability were purely local, and no more than matter of remedy for the collection of the principal debt, still this objection would have to be considered. See Hawthorne v. Calef, 2 Wall. 10, 17 L. ed. 776; Brown v. Eastern Slate Co. 134 Mass. 590, 592. But the case was argued on the footing of a contract between the creditor and the stockholder; and as the statute seems to assume that the stockholder's liability may follow him into other jurisdictions, and the court of appeals affirmed that a contract between the parties is presumed, we in turn assume that view to be correct. Bernheimer v. Converse, 206 U.S. 516, 529 , 51 S. L. ed. 1163, 1174, 27 Sup. Ct. Rep. 755. In either view the question put in the form most favorable for the plaintiff is the same; whether the remedy against the defendant is impaired so materially as to affect the plaintiff's rights. McGahey v. Virginia, 135 U.S. 662, 693 , 34 S. L. ed. 304, 314, 10 Sup. Ct. Rep. 972.
The plaintiff's supposed contract was subject to peculiar infirmities. His right was shared equally by all other creditors of the corporation, and not only might some other creditor by diligence have got in ahead of the plaintiff and have exhausted the fund for which the defendant could be held, but the right depended on the stockholder's [226 U.S. 455, 459] will. As was observed by Judge Rose, following the Maryland cases, in Republic Iron & Steel Co. v. Carlton, 189 Fed. 126, 137, the statute does no more than the stockholder was free to do before. He could have paid the corporation or a receiver or other creditors. The question whether the remedy on this contract was impaired materially is affected not only by the precarious character of the plaintiff's right, but by consideration of fact,-of what the remedy amounted to in practice. It is admitted that bringing the action gave the plaintiff no lien, as it seems mistakenly to have been assumed to do in Myers v. Knickerbocker Trust Co. 1 L.R.A. (N.S.) 1171, 71 C. C. A. 199, 139 Fed. 111, 116. The court of appeals states that the remedy has been found in practice an uncertain one, less efficacious than that which is substituted. There is nothing to contradict their statement as to what experience has taught. With that fact before us and also the absolute dependence of the creditor upon the will of the stockholder, we cannot go into nice speculation as to the probable result of this particular case, or say that the decision was wrong. The power of the state to make similar changes of remedy is asserted in more general terms than we have employed, in Fourth Nat. Bank v. Francklyn, 120 U.S. 747, 755 , 30 S. L. ed. 825, 828, 4 Sup. Ct. Rep. 757. See also Henley v. Myers, 215 U.S. 373, 385 , 54 S. L. ed. 240, 246, 30 Sup. Ct. Rep. 148.
A further objection is based upon the period of limitation established by the act. But as it does not appear that the plaintiff was hurt by it, this objection is not open. Darnell v. Indiana, Dec. 23, 1912 [ 226 U.S. 390 , 57 L. ed. --, 33 Sup. Ct. Rep. 120].