87. But the case shows, in my judgment, that prosecutor can maintain this writ. As we have seen, notice is required to be given of a hearing before this resolution could lawfully be passed. Such a hearing involves the right to object and protest. It appears that the council of the borough fixed a time and place for a hearing, though they gave no notice of it. It also appears that there was subsequently presented to the council the written protest against the grant to the railway, of many persons claiming to be citizens and freeholders of the borough. Prosecutor joined in that protest, which was received by the council and placed on file. In my judgment, this brings prosecutor within the rule laid down by the court of errors in Middleton v. Robbins, 54 N. J. Law, 566, 25 Atl. 471, and entitles it to use this writ. The result is that the resolution must be vacated and set aside, with costs.

1. The trolley system of propelling street cars, as at present used for the transportation of passengers through the streets of a city, is within the public easement over urban highways.

2. When private rights are not involved in the acts of public agents, notice to private persons is not absolutely essential to the legality of those acts.

3. When a statute expressly authorizes a municipal board to designate the number of street-railway tracks that shall be laid in any street, lane, or avenue of the city, the court cannot set aside, as unreasonable, an ordinance which authorizes the laying of double tracks.

4. When a statute forbids the laying of any railway tracks in any street unless the consent of the governing municipal board be first obtained, the board must know what particular tracks are to be laid before it gives consent.

5. The general rule is that the word "may" imposes a duty, whenever it is employed in a statute to delegate a power, the exercise of which is important for the protection of public or private interests. The word is so used in the act of March 11, 1893 (P. L. 1893, p. 241).

6. The owners of the fee simple of land in a street may prosecute a certiorari to test the legality of a municipal ordinance purport

ing to authorize a railway company to place rails, poles, and wires on their land in the

street.

(Syllabus by the Court.)

Suit by the state (John Kennelly and others, prosecutors) against the mayor and alderman of Jersey City, and the North Hudson County Railway Company, to test the legality of a certain ordinance. Judgment for prosecutors.

Argued June term, 1894, before REED, ABBOTT, and DIXON, JJ.

Charles L. Corbin and Gilbert Collins, for prosecutors. A. Q. Garretson, for defendants.

DIXON, J. The board of street and water commissioners of Jersey City having, on March 5, 1894, passed an ordinance giving the North Hudson County Railway Company permission to lay tracks, erect poles, and string wires on several streets of the city,among them, Grove street, from Pavonia avenue to the Hoboken line,-the prosecutors, owning property on that street, sued out this certiorari to test the legality of the ordinance. A fundamental question, lying at the basis of matters which we must consider in passing upon the objections of the prosecutors, is whether the trolley system of propelling street cars, involving, as it does, the erection of poles and wires on land, the fee of which is private property, is within the public easement over urban highways. In our judg ment, it is. That easement includes the right to use the street for purposes of passage by the public, and therefore to employ any means directly conducive to that end, which do not substantially interfere with the customary use of the street by any portion of the public, or with the recognized rights of abutting owners. The cars propelled by the trolley system do not materially differ, either in appearance or use, from the ordinary horse They are permitted to go along the streets in such manner only as is compatible with the customary modes of travel by others of the public. Railway Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067. And the tracks, poles, and wires cause no greater detriment to adjoining property than do the tracks, sewers, pipes, posts, and trees, which, undisputably, the public may authorize to be placed in the street. These considerations, we think, lead to the conclusion reached by the learned vice chancellors of this state in Halsey v. Railway Co., 47 N. J. Eq. 380, 391, 20 Atl. 859, and Railway Co. v. Grundy, 51 N. J. Eq. 213, 228, 26 Atl. 788, and by the learned chancellor in West Jersey R. Co. v. Camden, G. & W. Ry. Co. (N. J. Ch.) 29 Atl. 423,-that the adoption of the trolley system for the conveyance of passengers through the streets of a city, does not necessitate the invasion of any private right.

cars.

We proceed now to examine the objections presented by the prosecutors.

The first is that the ordinance was passed without notice to the owners of property

along the line of the street. It is impossible

to frame a universal rule, in determining when individuals are absolutely entitled to notice of the proceedings of public agencies. Like "due process of law," it seems to be a mixed question of abstract justice and established usage. Sometimes it is said that such notice is requisite in all judicial proceedings, but not in those which are legislative or ministerial. With regard, however, to the acts of corporate bodies invested with governmental powers, these terms are often very shadowy, and sometimes appear to be applied to such acts merely on a hypothesis that notice to private persons is or is not deemed essen

tial. Generally, I think, it may be said that, when private rights are involved, notice must be given to the parties interested. Yet not always; for the question whether the power of eminent domain shall be exerted over the property of A. or of B. is conclusively decided without notice to either, although that certainly involves private rights. The counterpart of the general rule above suggested is, I believe, of universal application,-that, when private rights are not involved, notice to private persons is not essential. The matters dealt with in the ordinance now under review, and of which complaint is made, the adoption of the trolley system, and the laying of double tracks in the street, do not involve private rights. It may be that the legitimate use of the street by the abutting owners will interrupt the passage of cars upon double tracks more frequently than it would if there were only a single track; but, as we have seen, the private right will not, on that account, be diminished. The public using the tracks must put up with the interruption. Rafferty v. Central Traction Co., 147 Pa. St. 579, 23 Atl. 884. If this ordinance defined the position of the poles, and thus determined whether the possible inconvenience which they might occasion should be borne by one abutting owner, rather than another, then, perhaps, as is intimated in the equity case before mentioned, private rights would be so concerned as to require notice. the ordinance attempts no such location. Notice, therefore, was not necessary, unless prescribed by the statutes under which the municipal authorities were acting. These statutes are the charter of the Jersey City & Hoboken Horse-Railroad Company (P. L. 1859, p. 550), an act transferring all its powers, privileges, and franchises to the North Hudson County Railway Company (P. L. 1874, p. 1264), and a supplement to "An act concerning street railroad companies" (P. L. 1893, p. 241). None of these acts directs notice to be given.

But

The prosecutors' next objection is that the company has not filed a map or survey of its route. The complete answer is that none need be filed. P. L. 1874, p. 1264, § 4.

Another objection is that, in authorizing a double track, the ordinance is unreasonable, in view of the narrowness of the street, and its other uses. The act of 1859, above referred to (P. L. 1859, p. 550, § 7) expressly empowers the city authorities to designate the number of tracks that shall be laid in any street, lane, or avenue of the city. This delegation of power is too specific to permit the court to overturn the ordinance on the ground stated: Haynes v. Cape May, 50 N. J. Law, 55, 13 Atl. 231; Trenton Horse R. Co. v. Inhabitants of City of Trenton, 53 N. J. Law, 132, 20 Atl. 1076.

It is further objected that the ordinance, in empowering the company to construct "any and all necessary curves, sidings, crossovers and switches, that may be required

for the proper, safe and economical operation of the railway," is unreasonably vague, and delegates a discretion which the municipal board itself was bound to exercise. This objection is valid. The act of 1859 (section 7) and the act of 1874 (page 1264, § 3) forbid the laying of any track or tracks along any street unless the consent of the governing municipal body be first obtained. We think this language fairly implies that the public body shall know what particular tracks the company propose to lay, before it determines whether it will consent or not. Only in this way can the public representatives give to public interests that protection which the legislature designed.

The last objection to be considered is that the ordinance does not prescribe the manner in which, or places where, the poles shall be located, or the manner in which wires shall be strung thereon. This objection rests upon the third section of the supplement of 1893, before mentioned (P. L. 1893, p. 241), which enacts that the municipal authorities may, when they deem it proper, authorize the use of poles to be located in the public streets, with wires, etc., "and when a board grants such authority it may in such case prescribe the manner in which and the places where such poles shall be located, and the manner in which the wires shall be strung thereon, and the same may be authorized and prescribed by ordinance." The question at once arises whether the language, “it may in such case prescribe the manner," etc., imposes a duty on the public body, or merely clothes it with a discretionary power. Ordinarily, the word "may" implies permission only, but often it is construed to be mandatory. It is noticeable that in this very section the term is used in both senses. In the first clause (that the municipal authorities may, when they deem it proper, authorize the use of poles, etc.), it clearly was intended to vest the authorities with discretionary power, while in the last clause ("and the same may be authorized and prescribed by ordinance") the term is mandatory, and in no other mode can the power be exercised. The sense of the word in the middle clause, now under consideration, is less clear. But I think it is mandatory. The general rule is that this force will be given to the word whenever it is employed in a statute to delegate a power, the exercise of which is important for the protection of public or private interests. Sedg. St. Const. 438; New York v. Furze, 3 Hill, 612; State v. Mayor, etc., of City of Bayonne, 56 N. J. Law, 297, 28 Atl. 713; 14 Am. & Eng. Enc. Law, 979. It is undoubtedly of importance to public inter ests that the poles and wires which are to convey so dangerous an agent as electricity through the public streets should be properly placed and constructed. This is not se cured by the provisions of this ordinance. which merely require the poles to be erected On the sidewalk adjacent to the curb line,

and the wires to be suspended 17 feet above the grade of the street. For this reason, also, the ordinance is illegal.

The defendants suggest that the prosecutors have no standing to question the legality of the ordinance. But when it is remembered that the railway company is intending to place tracks, poles, and wires upon the lands of the prosecutors, and that it has no right to do so, except under public authority lawfully conferred, it becomes evident that the prosecutors are entitled to question the legality of the authorization. Read v. City of Camden, 54 N. J. Law, 347, 24 Atl. 549. So far as it purports to affect the lands of the prosecutors, the ordinance must be set aside.

BIRD, V. C. The complainant files his bill to foreclose a chattel mortgage, and to restrain the defendant Donnell from selling the goods named in the chattel mortgage, by virtue of an execution issued upon a judg ment in his favor. The chattel mortgage was given by one Kate Rose Dougherty to secure the payment of the sum of $2,500. The judgment of the defendant Donnell was for $57.33, against Thomas Dougherty and E. Samuel Dougherty, engaged in business under the name of the Malaga Carpet Company. Thomas is the husband of Kate Rose Dougherty, the mortgagor. Donnell and the constable answer, and also answer by way of cross bill. The substance of the cross bill is that Kate Rose Dougherty, the mortgagor, became possessed of the title to the property by a fraudulent arrangement between herself and the said Thomas and the said E. Samuel Dougherty, for the purpose of defrauding the said Donnell of his claim against them. The complainant moves to have the cross bill dismissed because it seeks to introduce into the litigation a matter foreign to the subject-matter presented by the bill of complaint, and also because it seeks to introduce new parties to the controversy. In my judgment, it would be entirely untenable to say that a defendant could not set up, by way of cross, bill, the fact that the com

plainant procured his alleged lien or title by fraud, or by the fraud or connivance of others, with his knowledge or for his benefit. I think the legal proposition to be discussed in this case is not whether a defendant cannot obtain relief by means of a cross bill, but whether he can do so when it appears by the allegations of the cross bill that, in order to establish the fraud, persons who participated in the alleged fraud have not been made parties to the original bill, and consequently must either be made parties to the cross bill as defendants, or the case proceed without their presence in court, and without their having an opportunity to be heard. This is a combination of the two propositions presented in the notice of the motion to dismiss. After what I have above said with respect to the right of a defendant to charge a complainant with fraud, and so to defeat his claim to title to property in issue, it will be seen that, as this case stands, the real question to be settled is, can the issue be properly litigated without Thomas and E. Samuel Dougherty, the judgment debtors of the defendant Donnell, and the alleged fraudulent grantors, present as parties? Since that is the very point or gravamen of the issue,in other words, if the contention of the defendant should prevail the judgment must be against them,-it would seem that all reason and precedent require that they shall be made parties. The charge is directly that for the purpose of defrauding the defendant they transferred the title to these goods to Kate Rose Dougherty, and that the complainant had knowledge of the transaction and the purpose which moved them thereto. In King v. Martin, 2 Ves. Jr. 641, a judgment creditor showed that his debtor had procured insolvency proceedings to be instituted for the purpose of defrauding him of his judgment, and made the bankrupt a party. The bankrupt demurred to the bill upon the ground that he was not a necessary party. The demurrer was overruled. In Gaylords v. Kelshaw, 1 Wall. 81, it was held that, in a bill to set aside a conveyance as made without consideration and in fraud of creditors, the alleged grantor is a necessary defendant. To the same effect is Sewall v. Russell, 2 Paige, 175, 176. In the case of Lawrence v. Bank, 35 N. Y. 320, 324, the court said: "In the creditor's suit against a judgment debtor to set aside a prior assignment made by him in trust for the benefit of creditors on the ground of fraud, he is a necessary party." See, also, Van Doren v. Robinson, 16 N. J. Eq. 256. Besides, in the very many cases which appear in the books of reports instituted by creditors seeking relief against fraudulent transfers of their debtors' property, I think not one can be found in which the debtor has not been made a party. It would seem as though this must be so, from the fact that the very object of the bill in this case is to obtain a decree of the court declaring the transfer made by

them fraudulent and void. How can it af fect them unless they be made a party?

The question still remains, can this cross bill be so amended by introducing Thomas and E. Samuel Dougherty as parties defendant thereto, and the question involved be litigated in the present proceedings? This must be answered in the negative. If the complainant has failed to make all the persons interested parties, the defendant has his remedy by proper pleading; that is, by demurrer, or notice of motion to strike out for want of proper parties. If the interests of the defendant be such that it is necessary for him to raise issues not within the scope of the complainant's bill, but which are essential to the establishment of his rights, and to that end new parties must necessarily be brought into the litigation, he can raise such issues by filing an original bill. Shields v. Barrow, 17 How. 129, 144, 145. The motion to strike out the cross bill should prevail with costs. I will so advise.

COOK v. EAST TRENTON POTTERY CO. (Court of Chancery of New Jersey. Oct. 23,

1894.)

INSOLVENCY OF CORPORATION-RECEIVERS-IN

JUNCTION.

1. Although it appears by the first part of the seventieth section of the act respecting corporations (Revision, p. 189) that either the insolvency of a corporation, or its suspension of business for want of funds to carry on the same, supported by proper proof, is ground for the court to institute an inquiry preliminary to the issuing of an injunction and the appointment of a receiver, nevertheless, by the subsequent provisions of the same section, the insolvency and the resumption of business are so collectively presented that it must appear to the satisfaction of the court that the corporation is not only insolvent, but that it is not about to resume its business with safety to the public and advantage to the stockholders, before it can issue an injunction or appoint a receiver.

2. The suspension of business by a corporation, even though it does not appear that it is about to resume in a short time, when it is not clearly established that the corporation is insolvent, does not afford sufficient warrant for the court to assume jurisdiction, insolvency being regarded as an absolutely essential ingredient or fact both in pleading and proof.

(Syllabus by the Court.)

Bill by Charles S. Cook against the East Trenton Pottery Company for an injunction, and for the appointment of a receiver. Dismissed.

Linton Saterthwait, for complainant. William S. Gummere, for defendant.

BIRD, V. C. Mr. Cook, the complainant, is a large stockholder in the defendant company. He is also a creditor, it being admitted that his claim of $20,220.28 is justly due. This amount has been advanced by him for the purpose of enabling the company to carry on its business. He has ad

vanced portions of this money in the face of losses, from time to time, amounting to several thousand dollars. He alleges that the company is insolvent, and insists that he is entitled to the benefit of the seventieth section of the statute respecting corporations. This section declares that "when an incorporated company shall have become insolvent, or shall have suspended its ordinary business for the want of funds to carry on the same," then any creditor or stockholder may apply to the court, etc., and if, upon inquiry, "it shall be made to appear to the chancellor that the said company has become insolvent, and shall not be about to resume its business in a short time thereafter with safety to the public and advantage to the stockholders, it shall and may be lawful for the chancellor to issue an injunction," etc. Revision, p. 189.

That portion of the section first above quoted presents two conditions, either of which, it would seem, was intended to justify the court in taking such cognizance of the case as will enable it to discover the true situation of the corporation. The first of these conditions is the insolvency of the corporation; the second, is suspension of its ordinary affairs for want of funds to carry on the same. But the section referred to must be considered as a whole. Not only must the clauses which direct the inquiry be kept in mind, but also the clauses which direct what decree shall be made, and upon what foundation such decree shall rest. It will be seen, by the subsequent provision of the statute above quoted, that it must, upon such inquiry, appear to the satisfaction of the court that the corporation is not only insolvent, but that it is not about to resume its business in a short time with safety to the public and advantage to the stockholders. These phrases, certainly, are not in the disjunctive, as the former ones are. Whatever force the former may be entitled to in originating proceedings, the latter only are the warrant for a decree for an injunction and a receiver. Therefore, it must be concluded that the phrases or parts of the section last above quoted must be considered collectively. Although it is undisputed that the company has suspended its ordinary business, and there is no proof that it is about to resume, that fact cannot control, independently of the requirement that it must appear that the company is insolvent. A corporation may suspend business for the want of funds to carry on the same, and yet may be solvent. In case of suspension, when an inquiry is begun, during which it appears that the company is not insolvent, the court cannot proceed, even though all parties should admit that the company does not intend to resume business. The facts which, give jurisdiction must be comprehended both in the pleadings and the proofs. Hence, the inevitable conclusion is that insolvency is an absolutely essential ingredient or fact in every case in which the court is asked to en