U.S. Supreme Court Zabriskie v. Cleveland, C. & C. R. Co., 64 U.S. 23 How. 381 381 (1859)
Zabriskie v. Cleveland, Cleveland,
Columbus & Cincinnati Railroad Company
64 U.S. (23 How.) 381
APPEAL FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF OHIO
In 1851, the Legislature of Ohio passed a general law relating to railway companies which empowered them at any time, by means of their subscription to the capital stock of any other company or otherwise, to aid such other railroad company, provided no such aid shall be furnished until, at a called meeting of the stockholders, two-thirds of the stock represented shall have assented thereto.
In 1852, another act was passed for the creation and regulation of incorporated companies in Ohio, reenacting the above section and providing further, that any existing company might accept any of its provisions, and when so accepted, and a certified copy of their acceptance filed with the Secretary of state, that portion of their charters inconsistent with the provisions of this act shall be repealed.
The Cleveland, Columbus & Cincinnati Railroad Company, when they endorsed the bonds hereafter mentioned, had not formally complied with either of these requirements -- had neither convoked a meeting of the stockholders nor signified their acceptance to the secretary of state.
In April, 1854, the Cleveland, Columbus & Cincinnati Railroad Company endorsed a guaranty upon four hundred bonds of one thousand dollars each, with interest coupons at seven percent interest, issued by the Columbus, Piqua & Indiana Railroad Company.
A stockholder in the Cleveland &c.; company filed a bill to enjoin the directors from paying the interest upon the bonds which they had thus guaranteed, upon the ground that these directors had exceeded their legal authority in making the guaranty. Some of the bondholders came in as defendants with the corporation.
As between the parties to this suit, the acceptance of the acts of 1851 and 1852 may be inferred from the conduct of the corporators themselves. The corporation has executed the powers and claimed the privileges conferred by it, and it cannot exonerate itself from the responsibility by asserting that it has not filed the evidence required by the statute to evince its decision.
Amongst the acts of the corporators was this -- that at a meeting of the stockholders of the Cleveland company in July, 1854, the endorsement of the bonds was approved, adopted, and sanctioned, and this resolution has never been rescinded at any subsequent annual meetings, of which there have been several, at which the complainant was represented. His proxy was also present at the meeting of July, 1854, but declined to vote when his vote would have controlled the action of the meeting.
These negotiable securities have been placed on sale in the community, accompanied by these resolutions and votes, inviting public confidence, and a corporation
cannot, by their representations or silence, involve others in onerous engagements and then defeat the calculations and claims their own conduct has superinduced.
Zabriskie was a citizen of the State of New York and a stockholder in the Cleveland, Columbus & Cincinnati Railroad Company. He filed a bill against the company and obtained an injunction to restrain them from paying any money in discharge of the interest to become due on four hundred bonds of the Columbus, Piqua & Indiana Railroad Company, which said bonds had been endorsed by the former company conjointly with the Bellefontaine & Indiana Railroad Company, and the Indianapolis, Cleveland, and Pittsburgh Railroad Company. Butler, Belknap, and Callender, citizens of Connecticut, obtained leave to become parties to the suit as defendants upon the allegation that each of them was the holder of a bond or bonds which had been thus endorsed.
After much testimony was taken and other proceedings had, the circuit court, in March, 1858, dissolved the injunction and dismissed the bill. The complainant appealed to this Court.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The appellant is a stockholder of the Cleveland, Columbus & Cincinnati Railroad Company, a corporation existing by the law of Ohio and empowered to construct a railroad from Cleveland south, and having a capital of more than $4,300,000 distributed among above nine hundred stockholders. The appellant complains that this corporation, in April, 1854, illegally endorsed a guaranty upon four hundred bonds of one thousand dollars each, with interest coupons at the rate of seven percent per annum, payable to Elias Fossett or bearer in New York, in 1869, that had been issued in that month by the Columbus, Piqua & Indiana Railroad Company, and which were also endorsed by the Bellefontaine & Indiana Railroad Company, and the Indianapolis & Bellefontaine Railroad Company, to the prejudice of the stockholders and the burden of the resources of the said Cleveland corporation. The object of the bill was to obtain a decree to restrain the company, pending the suit, from paying the interest, and upon a declaration of the illegality of the bonds, to enjoin the corporation from applying any of its effects to their redemption.
The three defendants are holders of five of the bonds who have availed themselves of the invitation of the bill to all their class to become defendants and who assert that they are bona fide holders and that their securities are valid obligations of the company. This issue of the obligations of these four corporations originated in a negotiation among their officers, in
1854, to determine upon a uniform gauge for all their roads and to promote intimate connections in their transit operations.
The Piqua road and the Indianapolis road were projected to extend from Columbus to Indianapolis, one hundred and eighty-five miles, and were partially finished at a gauge of four feet eight and one-half inches, and had agreed to maintain this gauge for their common interest. At Columbus, they were to connect with roads of the same gauge leading through Ohio and Pennsylvania to Philadelphia.
The Cleveland and the Bellefontaine railroads were constructed upon the Ohio gauge of four feet ten inches, and the companies were interested to detach the other corporations from their Pennsylvania connection and to combine them with their own and other companies, whose roads passed through Cleveland, along the shores of the lakes into New York, and connected there with the railroad and canal communications of that state. The Piqua road was at this time finished only forty-six miles, and the company was embarrassed, and their work suspended for want of money. The Indianapolis company were willing to change the gauge of their road to the Ohio pattern, but were withheld by their contract with the Piqua Company. In January, 1854, the Piqua Company appointed a committee from their board of directors to negotiate for money or securities sufficient to complete their road and to discharge their debts, other than bond debts, and were authorized to prepare six hundred bonds of one thousand dollars each, of the usual form, to be secured by a mortgage, being the third mortgage of their franchises and road. They were also empowered to determine the gauge of the road and either to maintain their existing connections or to consent to the adoption of the Ohio gauge in conjunction with the Indianapolis Company.
This committee opened their negotiations in Philadelphia, but pending these, the vice president of the company, Dennison "sounded the inclinations" of the Cleveland Company, by intimating that if that company would endorse a portion of the bonds, and take some of the stock of the Piqua Company, the Pennsylvania connection would be abandoned. Some assurance having been given by the president of the Cleveland
Company to him, he, with the financial agent of the company Niel, arranged a contract with the committee of the Piqua Company to purchase the six hundred bonds, to guaranty a subscription for $50,000 of their stock at par, and to assume the control of the settlement of all controversies and questions concerning the gauge of the road. These negotiations were pending from the first week in February until the 25th of the month, when the contract was reduced to writing and the price to be paid settled at $305,000. On the 7th of March, 1854, Dennison and Niel concluded a contract with the three corporations, Cleveland, Indianapolis, and Bellefontaine, by which they consented to the permanent adoption of the Ohio gauge for the Piqua and Indianapolis roads, and those corporations agreed to guaranty four hundred of the bonds of the Piqua Company before mentioned, and to subscribe for thirty thousand dollars of their stock. This contract was reported shortly after to the boards of the several corporations, and approved, and the bonds were issued and endorsed, and the stock subscribed for in April, 1854. The tracks of the several roads were altered to conform to this arrangement shortly after. The negotiations and contracts of Dennison and Niel were for their own account and benefit. The testimony is conclusive of the fact that the members of the Piqua board were ignorant of the assurances they had received of the disposition of the Cleveland and other companies to enter into such engagements. Dennison had been a director of this company from its organization, but before signing the contract of the 25th February with the Piqua Company, he exhibited a written resignation, and that resignation was entered upon the minutes of the board before the approval of the contract or the issue of the bonds to him and his associate.
This transaction was reported to the stockholders of the endorsing corporations in July, 1854, and accepted by them as the act of the company. The board of directors of the Cleveland Company, on the 16th June, resolved that there should be submitted to a vote of the stockholders, at a meeting on the 1st July proximo, four propositions for the aid of other roads desiring to form a connection with that company, under the
4th section of a statute of Ohio, passed 3 March, 1851. Among these was the endorsement of four hundred bonds of the Piqua Company. Notice was given of this meeting by advertisement in the daily papers of Cleveland and Columbus and a daily paper in New York, but it did not disclose the object of the meeting. Above eighteen thousand shares of stock were represented, and the following resolution was adopted without a dissenting vote:
"Resolved that the endorsement jointly and severally with the Bellefontaine & Indiana Railroad Company, and the Indianapolis & Bellefontaine Railroad Company, of four hundred thousand dollars of the third mortgage bonds of the Columbus, Piqua & Indianapolis Railroad Company, by order of the board, March 6, 1854, be and the same is approved, adopted, and sanctioned, by this meeting, as the proper act of this company."
But although there was no dissent in the vote, there was dissatisfaction openly expressed by the proxy of the appellant and of a majority of the stockholders represented at the meeting, and who declined to vote on the resolution. The bonds were offered for sale in the City of New York in the summer of 1854 and the spring of 1855, under an uncontradicted representation of their validity through the votes above mentioned, and were freely purchased at fair prices. The interest was paid by the Piqua Company until October, 1855, when the installment due in that month was discharged by the endorsers in equal proportions. In the spring of 1856, the Piqua Company having become insolvent, the appellant served a notice upon the Cleveland Company not to pay any portion of the principal and interest that might become due on the bonds, and required them to sue for the cancellation of their guaranty, and demanded his share of the profits of the company, without the reservation of any part for the payment of the bonds, and immediately after filed the bill in this cause.
He contends that the sale by the Piqua Company to Dennison and Niel is void under a statute of Ohio that prohibits any director of a railroad company to purchase, either directly or indirectly, any shares of the capital stock, or any of the
bonds, notes, or other securities, of any railroad company of which he may be a director for less than the par value thereof, and it declares:
"That all such stocks, bonds, and notes, or other securities, that may be purchased by any such directors for less than the par value thereof shall be null and void."
He insists that the endorsement of the bonds of the Piqua Company was of no advantage to the Cleveland Company, but was merely to consummate the success of a speculation of Dennison and Niel -- a speculation reprobated by the law of Ohio; that the Cleveland Company were not empowered by their charter to guaranty the contracts of corporations or individuals; that this endorsement was not required for the construction of the road, or in the course of the business of the company, or to promote an end of the incorporation; and that none of the acts of the General Assembly of Ohio authorize it.
He denies any efficacy to the vote of the stockholders in July, 1854, because the notice was insufficient, in the length of the time and in the failure to disclose the purpose of the call; that more than one-half of the stock of the company was not represented, and two-thirds of that present did not vote, for the want of proper information and counsel on the subject. That the meeting were ignorant of material facts; they were not advised of the relations of Dennison and Niel to the Piqua Company, and their connection with the bonds, when the vote was taken, and were deceived as to the condition of the Piqua Company. He avers that the bondholders are chargeable with notice of the fact that the endorsement was made before the meeting of the stockholders, and by the authority of the directors only.
The testimony does not convict the defendants -- the bondholders -- of complicity in the negotiations or contracts that preceded the issue of the bonds, nor does any equivocal circumstance appear in their purchase of those securities. It is proved that it is a common practice for railroad corporations to make similar arrangements to enlarge their connections and increase their business. The Cleveland Company had encouraged this practice by precept and example. In a report of their board of directors, in January, 1854, the company
were informed of their establishment of a line of first-class steamboats between Cleveland and Buffalo, and of their guaranty of the bonds of other companies for three hundred thousand dollars; of subscriptions for stock to the extent of one hundred thousand dollars, and of promised aid to still another company. They say:
"These companies may need additional assistance, and others proposing to intersect ours may, by a moderate loan of money or credit, be enabled to finish their roads and establish with us business relations for the mutual benefit of both parties, while the advances on our part may be made safe and remunerative. Unless advised of your disapprobation, the board will continue to pursue this policy."
No such disapprobation was expressed as to check the board of directors until the guaranty of these bonds had been sanctioned, in July, 1854, at a meeting of the stockholders. The discussion was confined to the circle of the corporation until after the failure of the Piqua Company to pay a second installment of interest. Then the appellant filed this bill.
The frame of the bill implies that this contract exceeds the power of the corporation, and cannot be confirmed against a dissenting stockholder. His authority to file such a bill is supported upon this ground alone. Dodge v. Walsey, 18 How. 331; Mott v. Penn. R. Co., 30 Pa. 1; Manderson v. Commercial Bank, 28 Pa. 379.
The usual and more approved form of such a suit being that of one or more stockholders to sue in behalf of the others. Bemon v. Rufford, 1 Simon N.S. 550; Winch v. Birkenhead H. Railway Co., 5 De G. & S. 562; Mosley v. Alston, 1 Phil. 790; Wood v. Draper, 24 Barb.N.Y.R.
A court of equity will not hear a stockholder assert that he is not interested in preventing the law of the corporation from being broken, and assumes that none contemplate advantages from an application of the common property that the Constitution of the company does not authorize.
The powers of the Cleveland Company are vested in a board of directors chosen from the company. They are authorized to construct and maintain their road, and for that purpose can employ the resources and credit of the company, and execute
the requisite securities, and are required to exhibit annually a clear and distinct statement of their affairs to a meeting of the stockholders. In the year 1851 a general law relating to railway companies empowered them
"at any time, by means of their subscription to the capital stock of any other company, or otherwise, to aid such company in the construction of its railroad, for the purpose of forming a connection of said last-mentioned road with the road owned by the company furnishing such aid; . . . and empowered any two or more railroad companies whose lines are so connected to enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for which they were created, provided that no such aid shall be furnished nor any . . . arrangement perfected until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place and in such manner as they shall designate, and the holders of at least two-thirds of the stock of such company represented at such meeting in person or by proxy and voting thereat shall have assented thereto."
This section was reenacted in the following year, in a general act for "the creation and regulation of incorporated companies in Ohio," which last act provides that
"Any existing company might accept any of its provisions, and when so accepted, and a certified copy of their acceptance filed with the Secretary of State, that portion of their charters inconsistent with the provisions of this act shall be repealed."
Curwen's Ohio laws 949, 1110.
It is contended that neither of these acts was accepted by the Cleveland Company; that the act of 1852 superseded that of 1851, and that the former could be accepted and become obligatory upon the company only in the mode it prescribed. Both of these are general acts, and were designed to enlarge the faculties of these corporations, so as to promote their utility, and to enable them to accomplish with more convenience the objects of their incorporation. This act of 1851 does not divest any estate of the company, or make such a radical change in their constitution as to authorize the members
to say that its adoption without their consent is a dissolution of the body. But for an intimation in an opinion of the Supreme Court of Ohio ( Chapman & Harkness v. M.R. & L.E. R. Co., 6 Ohio N.S. 119) to the contrary, we should have been inclined to adopt the conclusion that the act of March, 1851, might be operative without the specific or formal assent of the corporations to which it refers, and was not superseded by the act of 1852, as to preexisting corporations. Everhart v. P. & U.C. R. Co., 28 Pa. 340; Gray v. Monongahela N. Co., 2 W. & S. 156; Great W. R. W. Co. v. Rushant, 5 De G. & S. 290.
The jurisprudence of Ohio is averse to the repeal of statutes by implication, and in the instance of two affirmative statutes, one is not to be construed to repeal the other by implication unless they can be reconciled by no mode of interpretation. Cass v. Dillon, 1 Ohio N.S. 607.
The learned compiler of the laws of Ohio retains the act of 1851 as valid in respect to the corporations then existing. But as between the parties on this record, the acceptance of those acts may be inferred from the conduct of the corporators themselves. The corporation have executed the powers and claimed the privileges conferred by them, and they cannot exonerate themselves from the responsibility by asserting that they have not filed the evidence required by the statute to evince their decision. The observations of Lord St. Leonards in the House of Lords, Bargate v. Shortridge, 5 H.L.Ca. 297, in reference to the effect of the conduct of a board of directors as determining the liability of a corporation, are applicable to this corporation, under the facts of this case. "It does appear to me," he says,
"that if, by a course of action, the directors of a company neglect precautions which they ought to attend to, and thereby lead third persons to deal together as upon real transactions, and to embark money or credit in a concern of this sort, these directors cannot, after five or six years have elapsed, turn round and themselves raise the objection that they have not taken these precautions, and that the shareholders ought to have inquired and ascertained the matter. . . . The way, therefore, in which I
propose to put it to your lordships, in point of law, is this: the question is not whether that irregularity can be considered as unimportant, or as being different in equity from what it is in law, but the question simply is whether, by that continued course of dealing, the directors have not bound themselves to such an extent that they cannot be heard in a court of justice to set up, with a view to defeat the rights of the parties with whom they have been dealing, that particular clause enjoining them to do an act which they themselves have neglected to do."
This principle does not impugn the doctrine that a corporation cannot vary from the object of its creation, and that persons dealing with a company must take notice of whatever is contained in the law of their organization. This doctrine has been constantly affirmed in this Court, and has been engrafted upon the common law of Ohio. Pearce v. M. & I. R. Co., 21 How. 441; Strauss v. Eagle Ins. Co., 5 Ohio N.S. 59. But the principle includes those cases in which a corporation acts within the range of its general authority, but fails to comply with some formality or regulation which it should not have neglected, but which it has chosen to disregard.
The instances already cited of the course of dealing of this corporation, and others of a similar nature, of which there is evidence in the record, sufficiently attest that the corporation accepted the acts of 1851 and 1852 as valid grants of power, and it would be manifestly unjust to allow it to repudiate the contracts which it has made, because their acceptance of these grants has not been clothed in an authentic form. The Supreme Court of Ohio has recognized the obligation of corporators to be prompt and vigilant in the exposure of illegality or abuse in the employment of their corporate powers, and has denied assistance to those who have waited till the evil has been done, and the interest of innocent parties has become involved. Chapman v. Mad River R. Co., 6 Ohio N.S. 119; State v. Van Horne, 7 Ohio N.S. 327.
We conclude, that the validity of the contract of the Cleveland corporation under the circumstances must be determined on the assumption that it was authorized to exert the
power conferred in the fourth section of the act of March, 1851, and 24th section of the act of May, 1852.
In deciding upon the validity of this contract, we deem it unimportant to settle whether Dennison was a director of the Piqua Company the 25th February, 1854, when he signed the contract with the committee of the Piqua board of directors, or whether that contract was affected by its ratification by the board after his resignation was entered upon the minutes, or by the subsequent consummation of the contract, in the reciprocal transfer of the securities and payment of the consideration, or whether, as matter of law, the bonds of the Piqua Company, commercial in their form, payable to another party, and issued after his resignation, are null and void.
The contract of the guarantors endorsing the bonds is a distinct contract, and may impose an obligation upon them independently of the Piqua Company. In the absence of a personal incapacity of Dennison to deal with his principal, the issue of the bonds by the directors of the Piqua Company is an ordinary act of administration, and bonds in such form, it is admitted, "challenge confidence wherever they go." We perceive no illegality in their delegation to them of the power to determine whether the Ohio or Pennsylvania gauge should be adopted, or their sale of the privilege to adjust the controversies and questions relating to it. Their adoption of the Ohio gauge was a solution of all the difficulties; it enabled the Indianapolis Company to adopt it; it superinduced the resulting consequence of running connections among the four corporations; it secured profits to the guarantors; it imposed the burden of relaying their track upon the Piqua Company. Their contract to adopt this gauge and to form the corresponding connections is a valuable consideration, and the Piqua Company have fulfilled the engagements that Dennison and Niel were authorized to stipulate on their behalf. There is testimony that the bargain was a hard one for the guarantors, and argument that it was probably an unjust one, and possibly fraudulent in reference to the stockholders of the Cleveland Company. But the bill is framed not to obtain relief from error or fraud in the administration of the powers of the company
by their trustees, but against the exercise of powers that did not belong to the corporation, and which the body could not confirm, except by a unanimous vote. Foss v. Harbottle, 2 How. 461; 2 Phil.Ch. 740.
We proceed to consider of the effect of the sanction given to the arrangements of the Cleveland Company, through Dennison and Niel, with the Piqua Company, by the vote of the meeting in July, 1854. It is objected that the notice of this meeting was insufficient and that, unprepared as the corporators were, the proxy appointed by the nonresident stockholders was overpowered by the heat and passion of the directors and their adherents. There is some force in the complaint that this meeting was not conducted with a due respect for the social rights of a portion of the stockholders. But the time, place, and manner of the meeting were appointed by the directors, as the act of 1851 permits. The proxy of the appellant was there, exhibited his instructions, discussed the propositions submitted, and declined to vote, when his vote would have controlled the action of the meeting. Since that time, several annual meetings have been held, at which the appellant was represented. The circumstances of the contract and its effects have been developed, and yet the resolution sanctioning this contract has not been rescinded. It may be that among the stockholders and within the corporation the cause of this procrastination and hesitancy to act upon the subject may be estimated properly. But we are to regard the conduct of the corporation from an external position. The community at large must form their judgment of it from the acts and resolutions adopted by the authorities of the corporation and the meeting of the stockholders, and by their acquiescence in them. These negotiable securities have been placed on sale in the community, accompanied by these resolutions and votes, inviting public confidence. They have circulated without an effort on the part of the corporation or corporators to restrain them or to disabuse those who were influenced by these apparently official acts. Men have invested their money on the assurance they have afforded.
A corporation, quite as much as an individual, is held to a
careful adherence to truth in their dealings with mankind, and cannot, by their representations or silence, involve others in onerous engagements and then defeat the calculations and claims their own conduct had superinduced. The opinion of the Court is that the injunction granted upon the bill of the appellant was improvidently granted, and that he is not entitled to the relief he has sought, and that the decree of the circuit court dissolving the injunction and dismissing the bill is correct, and must be