State v. Wilmington Bridge Co.

I am of opinion that this Court has jurisdiction. The charter is the contract between the company and the State. It was accepted with the liability to account for excess of profits over the ten per cent. The direction to pay the same to the Trustee of the School Fund was nothing more than the designation and appointment of a person to receive it; and the remedy which he was authorized to adopt applied to the recovery of the excess when it occurred, of which it was the duty of the corporation to apprise the Trustee. The further power of inspecting the books could only be exercised for the benefit and information of the party to whom the excess over the ten per cent, belonged. It could not have been designed to impair or take away the right of the party beneficially entitled to adopt the usual remedies, either to enforce an account or compel payment.

Under this charter there can be no question that the *61State was entitled to have the excess of profits over ten per cent, paid to its agent; but whether such excess had occurred could only be made to appear by an account of the pecuniary transactions and affairs of the company, if they have omitted to comply with the stipulation on their part. To deprive the State of the only mode of compelling an account would be to impair the interest of the State under this contract. It is true, as has been argued, that there is an action at law given by the charter to the trustee. But that does not afford a complete remedy where, as in this case, a discovery and an account are necessary in order to ascertain whether any and what excess of tolls may have accrued. It is a case of concurrent remedies applying to the same subject matter, but for different purposes ; and for the purpose of this bill the remedy at law would be ineffectual.

The demurrer is overruled and the defendant ordered to answer over.