The wrongs specifically charged in the bill in this case are
those which were set forth in the suit of
Angle v. Chicago, St.
Paul, Minneapolis & Omaha Railway Company, 151 U. S.
1, but there is this difference between the two cases --
that in that case, the Omaha Company demurred, and on the demurrer
a decree was entered against it, whereas, in this case, the Omaha
Company took issue upon the charge of having committed such wrongs,
and the testimony shows that it did not commit them.
The act of the Legislature of Wisconsin of 1882, revoking the
grant of land to the Portage Company and bestowing it upon the
Omaha Company, neither in terms nor by implication burdened the
transfer with a continuing obligation for the debts of the Portage
Company, and no creditor of the Portage Company had any legal or
equitable right to any portion of those lands.
The case is stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
This case comes before us on appeal from a decree of the Court
of Appeals for the Western District of Wisconsin of date September
2, 1889, dismissing the bill of plaintiff and appellant for want of
equity. The original bill was filed in that court on July 25, 1885.
The defendants named therein were
Page 163 U. S. 32
the Chicago, Portage & Superior Railway Company (to be
hereafter called the "Portage Company"), the Chicago, St. Paul,
Minneapolis & Omaha Railway Company (to be hereafter called the
"Omaha Company"), Ransom R. Cable, Henry H. Porter, A. A. Jackson,
and Charles J. Barnes. After some preliminary pleadings, the
defendants filed answers; testimony was taken, and the case was
submitted for hearing on the pleadings and proofs.
The plaintiff sued as trustee in a deed of trust executed by the
Portage Company on January 1, 1881, to secure a proposed issue of
negotiable bonds to the amount of $10,200,000, of which 758 bonds
of $1,000 each were claimed to be still outstanding and unpaid. The
deed of trust covered all the property of the railway company,
including a certain grant of lands made by the United States to the
State of Wisconsin, and transferred by the state to it. The claim,
in a general way, was that these lands had been wrongfully wrested
by the Omaha Company from the Portage Company, and a decree was
asked declaring this deed of trust a first lien on such lands. The
wrongs specifically charged in the bill are those set forth in the
suit of Angle against the same two railway companies, reported in
151 U. S. 151 U.S.
1, to which case therefore reference may be had for a full
statement thereof. That case was disposed of on demurrer, while
this is before us upon the proofs, and, in view of the opinion
there filed, the question we have now to consider is whether the
testimony sustains the charges.
The plaintiff states three propositions, each of which it claims
is established by the evidence, and either one of which it says
entitles it to the relief prayed for:
"First. -- That the Omaha Company wrongfully and fraudulently
prevented the Portage Company from complying with the conditions of
the grant, and caused the grant to be transferred to itself."
"Second. -- That the Omaha Company, by its wrongful acts, became
the sole stockholder of the Portage Company, and as such
stockholder wrongfully and fraudulently used its powers and
position to strip the Portage Company of its property and transfer
it to itself. "
Page 163 U. S. 33
"Third. -- That the Act of the Legislature of Wisconsin of
February 16, 1882, revoking the grant to the Portage Company, and
the Act of March 7, 1883, confirming the revocation, did not divest
or attempt to divest the creditors of the Portage Company of their
legal or equitable rights nor attempt to prevent them from having
these lands appropriated so far as may be necessary to the
satisfaction of their debts; otherwise, these acts would be null
and void as impairing the obligation of a contract and invading
private rights."
Involved in and essential to the plaintiff's case is the
specific charge that the Omaha Company bribed certain officials of
the Portage Company (in whose hands was, perhaps, the only valid
outstanding stock of the Portage Company, and held by them in
trust) to dispose of that stock so that the Omaha Company, with
knowledge of the trust attending the stock, and in breach thereof,
became the controlling, if not the sole, stockholder in the Portage
Company. It is true that on January 20, 1882, A. A. Jackson, of
Janesville, Wisconsin, C. J. Barnes of the City of Chicago,
Illinois, and J. C. Barnes, of the City of New York, transferred to
R. R. Cable, who was acting for the Omaha Company, one million
dollars of the capital stock of the Portage Company, standing in
the name of Jackson, and so much of another million dollars of
capital stock, standing in the name of J. C. Barnes as was
absolutely valid and full-paid stock, together with five hundred
shares standing in the name of C.J. Barnes. This transaction is
challenged, and its honesty and good faith are primary matters of
inquiry.
In order to a clear understanding, a brief statement of what had
theretofore transpired is essential. Prior to 1880, the Portage
Company had done a little work in the construction of the line
aided by the land grant, and but little. The work had been stopped,
and the company was practically a dormant corporation, owning the
land grant, and subject to certain indebtedness. Its principal, if
not sole, creditor, was the Chicago and Northern Construction
Company, which had done all the work on the road. This construction
company, having expended some money in construction, for which the
railroad
Page 163 U. S. 34
company was indebted to it, was itself indebted to A. A.
Jackson, an attorney, of Janesville, in the sum of $18,000; to I.
C. Sloan, an attorney, of Madison, in the sum of $2,000, and to
Edward Ruger, of Janesville, for engineering services, in the sum
of $10,000 -- for which sums these parties had recovered judgments,
and to others in smaller sums, aggregating not exceeding $10,000.
At the time of the negotiation, hereafter referred to, with Gaylord
and others, the railway company had issued $400,000 in bonds and
$500,000 stock, of which issue the construction company owned and
held all the bonds and $350,000 of the stock. Mr. J. C. Barnes was
the individual who had put the most money into the construction
company, and was practically its owner. In the summer of 1880, one
Willis Gaylord entered into arrangements with Barnes for the
reorganization of the railway company and the securing of means for
the construction of the road. The exact terms of the arrangements
between Gaylord and Barnes may be open to some question, for
Gaylord was not produced as a witness and Barnes' recollection was
not clear. A contract in writing, executed on the 20th of
September, 1880, between Gaylord, the New England and Western
Investment Company, and William H. Schofield, by which the latter
two parties were to render their services in securing funds for the
building of the road, throws some light on the question. It
recites:
"And whereas, in the securing of said railway company's charter,
land grant, rights of way, surveys, about sixty (60) miles of
roadbed graded, and other lawful and proper expenses, there has
been over seven hundred thousand dollars of money expended, which
is represented by the aforesaid charter, land grant, rights of way,
and other property, it is to be provided that out of the new series
of first mortgage bonds, there is to be set apart and made a
special trust seven hundred (700) of said new first mortgage bonds,
of $1,000 each, also ten percent of the capital stock of the
company, and, by the order in writing of said Willis Gaylord,
countersigned by the president of said railway company, paid to the
persons entitled to receive the same, as designated by the said
Gaylord, in full liquidation and satisfaction of all claims and
demands (except as
Page 163 U. S. 35
hereinafter stated) of the present owners of said railway, and
for all expenditures and claims made and due for said charter, land
grant, right of way, surveying, grading, and all and every kind of
expense on account of said railway company, not including a certain
amount of floating debt now outstanding, which does not exceed
forty thousand dollars ($40,000), and to be provided for
hereinafter, and the aforesaid $700,000 in first mortgage bonds are
to have the interest coupons for the first two years from their
date cut off and cancelled, and the said bonds, together with ten
percent of the capital stock as aforesaid, are to be placed in
trust as a special trust, and be delivered to the parties entitled
to receive the same, as designated by the said Gaylord, to be
delivered, however, only
pro rata, as the other bonds and
stock are delivered for material or money, and as the road is
constructed and put in operation in sections of ten (10) miles
each."
"And whereas there is in the form of floating debt, in lawful
and proper claims, approximately, but not exceeding $40,000, it is
to be provided that when, through said examination, the enterprise
is found to be satisfactory to said investment company, and the
proposed new bonds and stock are prepared and deposited as herein
provided for, then said investment company will proceed at once to
the negotiation of the same, and will, as soon as cash to the
amount of $40,000 shall have been procured, pay or cause to be paid
said sum to A. S. Barnes and Co., in payment of said floating debt,
and, on such payment being made, the reorganization or substitution
of new directors and officers of said railway company, as herein
provided, shall then take place."
"And the said Gaylord shall furnish satisfactory evidence and
assurance that the said $700,000 of first mortgage bonds and ten
percent of capital stock will pay, cancel, and fully release all
claims, demands, and encumbrances against said railway company,
except said floating debt, and that the floating debt aforesaid
does not and shall not exceed $40,000."
Apparently, from this recital, the $40,000, or such a matter,
due by the construction company to Jackson and others, was treated
as a debt of the railway company and was to be paid
Page 163 U. S. 36
in cash, leaving the indebtedness of the railway company to the
construction company to be satisfied by the $700,000 bonds and the
10 percent of the stock. It would seem from other evidence that
Barnes was to take $350,000 of the bonds and the stock, and Gaylord
was to take the balance of the bonds, although there is testimony
that Gaylord was to receive fifty of the Barnes bonds for personal
services and by way of commission. There was a modification of this
contract on January 20, 1881, but the change is not material to
this controversy. On March 28, 1881, the action of Gaylord in the
two contracts of September 20, 1880, and January 20, 1881, was
approved by the directors of the railway company, who also, on the
same date, passed a resolution as follows:
"
Resolved . . . that for all present outstanding stock
certificates, new certificates of stock for a like amount shall be
issued and delivered to the parties entitled to receive the same
upon the surrender and cancellation of their old certificates of
stock and in exchange therefor."
The second day thereafter, on March 30th, a resolution was
passed, which, after referring to the appropriation of bonds to the
amount of $700,000, and stock to the amount of a million for the
purpose of discharging the indebtedness of the company, recites the
receipt of full value in real property and other valuable
consideration for such bonds and stock, and gives the consent of
the company to the immediate issue of one-half the amount
thereof.
Just before the passage of these two resolutions, and on March
26, 1881, the construction company assigned to Jackson its claim
against the railway company for bonds and stock, as well as all of
its claims and demands of any and every kind against the railway
company. Jackson took this assignment really for J. C. Barnes, and
was to hold the claim thus assigned, for him, until he should be
able to pay the amounts due to Ruger, Sloan, and others.
Subsequently, and on May 17, 1881, Jackson forwarded to the
president of the railway company a letter giving notice of the
assignment, stating that of the 400 bonds which had belonged to the
construction company, 361 had been surrendered to the railway
company,
Page 163 U. S. 37
to be exchanged for new bonds, and that he had in his possession
the remaining 39, and proposing to surrender the 39 and release all
claims for the 361 upon the issue to him of $650,000 of full-paid
stock. Whereupon the board of directors took the following
action:
"On motion of Wm. T. Watson, duly seconded, the following
resolution was adopted:"
"Whereas, A. A. Jackson, as the assignee of the Chicago and
Northern Pacific Construction Company, holds 39 bonds of this
company issued by this company under its former name of the Chicago
and Northern Pacific Air Line Railway Company, bearing date July 1,
1872, with the coupons thereto annexed, and, as assignee of said
construction company, he is also entitled to receive from this
company 361 bonds of this company, of $1,000 each, with interest
thereon from the 1st day of July, 1872 at the rate of seven percent
per annum, amounting in all on the 1st day of June, 1881, to the
sum of $649,663.00, and"
"Whereas, the said Jackson has made a proposition to this
company in writing proposing to surrender to this company said 39
bonds so held by him and to release this company from its liability
and obligation to deliver to him 361 bonds and interest upon the
company issuing and delivering to him 6,500 shares of the capital
stock of this company,"
"Therefore, resolved, that the proposition of A. A. Jackson be,
and the same is hereby, accepted, and the president and secretary
are hereby authorized and directed to sign, seal, and deliver to
said A. A. Jackson certificates of full-paid stock of this company,
of the par value of $650,000, upon said Jackson's delivery to them
of said 39 bonds, with the coupons thereto annexed, and a properly
executed instrument releasing and discharging this company from its
liability and obligation to execute and deliver to him bonds of
this company for $361,000 and interest at 7 percent from July 1st,
1872, in pursuance of his proposition; and"
"Resolved, that the proposition of A. A. Jackson be entered upon
the records of this company in connection with this order. "
Page 163 U. S. 38
In accordance, therefore, with the terms of this resolution and
that of March 28th, heretofore quoted, Jackson was entitled to
receive, on the surrender of the $350,000 of old stock and 39 bonds
in his possession, and the release of all claim in respect to the
361 theretofore surrendered, the sum of $1,000,000 in full-paid
stock of the company. This stock, when issued to Jackson, would,
under the arrangement between him and Barnes, be held by Jackson
for the benefit of J. C. Barnes. This stock was in fact issued and
delivered to Barnes for Jackson. That this stock was not obtained
surreptitiously, but delivered knowingly by the officers of the
company to Barnes for Jackson, is evidenced by the following
letters and receipt, the letters being signed by the president of
the company:
"
Chicago, Portage and Superior Railway Company"
"
Wm. H. Schofield, President"
"President's Office, 150 Broadway"
"New York, June 18, 1881"
"
R. G. Rolston, Esq'r, president Farmers' Loan and Trust
Company, New York."
"Dear Sir: I have this day deposited with the Farmers' Loan and
Trust Company eight thousand six hundred and fifty (8,650) shares,
of $100 each, of the capital stock of the Chicago, Portage and
Superior Railway Company, to be paid out or delivered by you upon
special orders by me prepared, and this day left with you for
acceptance. Will you please sign the form of acceptance on said
stock orders, and when so signed, and upon the presentation and
surrender to you of this order, deliver to Jno. C. Barnes, Esq'r,
the aforesaid special orders representing the said 8,650 shares of
stock, and this is your general authority for the delivery of said
stock to the persons and at the terms named in said special
orders."
"Chicago, Portage and Superior Railway Company"
"By Wm. H. Schofield, president"
Page 163 U. S. 39
"
Office of the Farmers' Loan and Trust Company"
"
26 Exchange Place, cor. William St."
"New York, June 17, 1881"
"Received from the Farmers' Loan and Trust Company certificates
for the delivery of eighty-six hundred and fifty shares of the
capital stock of the Chicago, Portage and Superior Railway Company,
in accordance with the terms of said certificates."
"J. C. Barnes"
"Per E.D. Hotchkiss"
"New York, Oct. 22, 1881"
"To the Farmers' Loan and Trust Co., New York:"
"You are hereby authorized and directed to deliver to John C.
Barnes, Esq., of the City of New York, all the certificates of the
capital stock of the Chicago, Portage and Superior Railway Company,
referred to and described in 90 certain orders, signed and accepted
by you, on the surrender to you of all of said orders, without
regard to any of the conditions or limitations contained or
specified in said orders."
"Chicago, Portage and Superior Railway Company"
"By William H. Schofield, President"
Further, on the stubs of the stock book of the company, in the
handwriting of the president, except the signature of J. C. Barnes,
appear these entries:
On the stub of certificate numbered 1 (the stubs of certificates
from 1 to 90, inclusive, being precisely similar except in number
or shares):
"On acct. stock, bonds and interest cancelled and returned. No.
1, for 500 shares, June 18, 1881. Issued to A. A. Jackson, of
Janesville, Wisconsin. Received certificate No. 1, as above
described, June 18, 1881."
And on stub No. 132:
"On account of stock, bonds and int. cancelled and returned. No.
132, for 1,350 shares, October 24, 1881. Issued to A. A. Jackson,
of Janesville, Wis. To make bal. of 1,000,000, June 18, '81.
Received certificate No. 132, as above described, Oct. 24, 1881,
for A. A. Jackson, $1,000,000,
Page 163 U. S. 40
in ten thousand shares. Dated June 18, '81, and present date. J.
C. Barnes."
On the day of receiving the last of these stock certificates,
to-wit, October 24, Barnes wrote to Jackson advising him of the
issue of the 10,000 shares in his name; that the certificates were
in his (Barnes') hands, and that he (Jackson) could vote on that
stock. On October 31, Jackson, being in New York, received from
Barnes this receipt:
"
A. S. Barnes and Co., Publishers."
"New York, October 31, 1881"
"Received from A. A. Jackson ninety-one (91) certificates of
stock of the Chicago, Portage and Superior Railway Company,
aggregating ten thousand (10,000) shares, as follows:"
No. 1 to 5, inc., 500 sh's ea. . . . . 2,500
" 6 " 55, " 100 " " . . . . 5,000
" 56 " 75, " 50 " " . . . . 1,000
" 76 " 90, " 10 " " . . . . 150
" 132 for . . . . . . . . . . . . . . . 1,350
------
Total shares . . . . . . . . . . . . 10,000
"The above certificates are issued to A. A. Jackson, and have
not been transferred, but are held for his future order."
"J. C. Barnes"
Jackson took that receipt, as he testifies, simply because he
did not care to carry the certificates home, and wished something
to show where they were and that they were held subject to his
order. On November 15th thereafter, J. C. Barnes transmitted to his
nephew C.J. Barnes, in Chicago, the stock, accompanied by this
letter and power of attorney:
"New York, Nov. 15, 1881"
"Charles J. Barnes:"
"By express today, I send you ten thousand shares of C.P. and S.
Railway stock, issued to A. A. Jackson, and which belonged to him
for settlement of construction company's claims etc. I send these
shares at the request of Mr. Jackson.
Page 163 U. S. 41
He will explain why they are sent, and his argument agrees with
my own convictions. These shares are not ever to be parted from
your custody except as it shall be deemed necessary to protect the
mutual interest of Jackson, yourself, and myself, and are only to
be used in extreme case of necessity, for our mutual benefit. I
also enclose authority to sell the ten thousand shares which stand
in my name on the company book."
"J. C. Barnes."
"New York, November 15, 1881"
"This is to say that Charles J. Barnes is my true and lawful
attorney for negotiation and sale of a certain number of
certificates of stock standing in my name on the books of the
Chicago, Portage and Superior Railway Co., said certificates dated
June, 1881, and aggregating $1,000,000."
"J. C. Barnes"
It would seem clear from this evidence, not depending on
imperfections of memory, but contained in writings (many of them on
the books of the company, and made by its officers) that Jackson
was the legal holder of this million of dollars of stock, free from
all obligation to the company and subject only to the trust in
favor of J. C. Barnes. It is difficult to see why Jackson did not
have the legal right, with the assent of Barnes, to dispose of this
stock to whomsoever he saw fit, and at any price he could obtain.
The debt of the railway company to the construction company is not
disputed. The documentary evidence establishes that for that debt
the company issued this stock as full-paid stock. No limitations
are expressed in the proposition of Jackson or the resolution of
acceptance, and, for aught that these records disclose, he had the
same right and control over this stock, subject only to his trust
in favor of Barnes, that any stockholder in any corporation has
over his. It is true that the transaction between Jackson and the
railway company seems to involve some departure from the
arrangement indicated by the contract between Gaylord and others,
of September 20, 1880, for that apparently contemplated the issue
of $700,000 of bonds,
Page 163 U. S. 42
$1,000,000 stock, and the payment of $40,000 in cash, in
satisfaction of all the debts of the railway company; but this
transaction was the later one, and, insofar as it modified the
earlier arrangement, superseded it. It is probable that there was
in fact no modification, but only an addition, and that Gaylord and
J. C. Barnes still expected to receive $700,000 in bonds and
$1,000,000 stock, in addition to this $1,000,000 of stock issued to
Jackson, for additional certificates of stock to the amount of
$1,000,000 were made out by the officers of the company in the name
of J. C. Barnes, though never delivered to him. Apparently, they
regarded this as a bonus for their services.
It is this last $1,000,000 of stock which is referred to in the
authority given by J. C. Barnes to C.J. Barnes of November 15,
1881, heretofore quoted, and also in the following letter of
authority, given on November 19th by J. C. Barnes to Jackson:
"A. A. Jackson, Esq., Janesville, Wis.:"
"I hereby authorize and empower you to negotiate the sale for me
of the certain ten thousand (10,000) shares of stock now standing
in my name on the books of the Chicago, Portage and Superior
Railway Company, said shares representing the par value of one
million dollars."
"J. C. Barnes"
It was evidently the doubt as to the validity of this latter
stock as full-paid stock that induced the parties in making the
transfer to Cable to thus describe it in their contract of
sale:
"And so much of the ten thousand shares of the capital stock
standing in the name of John C. Barnes, aforesaid, on the books of
said company (which last-named stock said Jackson and C.J. Barnes,
as agents of said John C. Barnes, are authorized and empowered to
sell upon such terms as they shall see fit, a copy of the said
authority from said John C. Barnes to said A. A. Jackson being
hereto annexed and made a part hereof) as is absolutely valid and
full-paid stock."
We do not deem it necessary to enter into any consideration of
the question of its validity, or whether it was full-paid
Page 163 U. S. 43
stock, and only refer to it for the purpose of showing that the
transaction with Jackson was independent of the arrangement between
Gaylord and Barnes, and was unaccompanied by any conditions which
may be claimed to have attached to the stock issued in Barnes'
name.
The testimony further discloses that, from some time in the
latter part of 1881 until the sale made by Jackson to Cable,
Schofield, as the president of the railway company, was negotiating
with the officers of the Grand Trunk Railway Company with a view to
securing their interest in the Portage Company and their aid in
floating its bonds in European markets, and that those negotiations
had proceeded finally so far as to disclose a possibility, perhaps
a probability, of success. Jackson and J. C. Barnes were aware of
the pendency of these negotiations and of the various steps
therein, so far as they were disclosed by the records of the
Portage Company, and the contracts which were reported by Schofield
to the directors of that company. The Grand Trunk Company, having
secured an entrance into Chicago, evidently saw the possibility of
benefit to itself in obtaining control of a road running into the
far Northwest, and upon that view entered into these negotiations.
It is also true that when the Grand Trunk Company found that Cable,
acting for the Omaha Company, had purchased this Jackson stock, it
abandoned all negotiations and gave up the thought of attempting to
secure control of the Portage Company. It is claimed by Jackson
that the delays in negotiations with the Grand Trunk Company were
such that he had lost all confidence in their success, that he
offered the stock to officers of that company at the same price
that Cable subsequently paid for it, and that they declined to take
it.
Putting the most unfavorable construction upon the testimony, it
does not seem to us that either Jackson or Barnes can be condemned
of any breach of trust or other obligation to the Portage Company
when, having offered the stock to the Grand Trunk Company at the
price afterwards paid by Cable, and such offer having been
declined, they sold it to the Omaha Company. It may be that thereby
Schofield and
Page 163 U. S. 44
Gaylord were deprived of the profits which they expected to
secure by successfully carrying through the negotiations with the
Grand Trunk Company, but we do not understand that one stockholder
is, by virtue of his ownership of stock, bound to continue in the
holding of it in order to allow another stockholder to make a
profit out of negotiations then pending. Jackson and Barnes had the
same right to look after their own interests in the sale of the
stock that Schofield and Gaylord had after theirs in the
negotiations with the Grand Trunk Company. It seems very probable,
if we may speculate as to what would have been the result if the
negotiations with the Grand Trunk Company had been successfully
carried to completion, that the $1,000,000 of stock which Jackson
held, instead of being worth $200,000, would have been worth little
or nothing, and we do not understand that a stockholder is under
obligations, legal or moral, to sacrifice his personal interests in
order to secure the welfare of the corporation of which he is a
stockholder, or to enable another stockholder to make gains and
profits.
In short, to sum up this branch of the case, from the testimony
in this record, it is, we think, clear, that Jackson was guilty of
no breach of trust in selling this stock; that it belonged, both
legally and equitable, to J. C. Barnes and himself; that they had a
full legal and moral right to sell it to anyone who would pay their
price, and it equally follows that the Omaha Company and Cable, in
making the purchase, were themselves guilty of no wrong.
Another claim is that the Omaha Company wrongfully prevented the
Portage Company from earning the land grant. This, it is said, was
done by inducing the general manager of the company to withdraw the
engineering corps and to stop the contractor from proceeding with
the work of construction, and, after all work had in fact been
stopped, by false swearing, securing an
ex parte
injunction to restrain the officials of the Portage Company from
any further efforts in its behalf. But the testimony does not make
good these charges. It is true, Mr. Cable, after his purchase of
the stock, asked Mr. Peck, the general manager, to discontinue the
work of construction,
Page 163 U. S. 45
but the latter, as he himself testifies, declined to do this,
not recognizing Mr. Cable as having any authority in the matter. He
did, however, after consultation with the president and learning
that negotiations for the assistance of the Grand Trunk Company had
been abandoned, notify the contractors by telegraph of the fact,
and that there seemed to be no immediate prospect of raising money
to continue the work. With reference to the alleged obtaining of an
ex parte injunction on false affidavits, the facts are
these: the president of the Portage Company, who was a resident of
New York, after the giving up of the negotiations with the Grand
Trunk Company, returned to that city and there had in his
possession the books and papers of the company. Indeed, for all
practical purposes, the office of the company seems to have been
theretofore transferred from Chicago to New York. Mr. Cable sought
to have the stock which he had purchased transferred on the stock
books of the company, but failed in his efforts. He was informed
that the president was calling special meetings of the directors of
the company in New York without giving notice to the local
directors and without their presence, and, by virtue of authority
granted at such meetings, was disposing of bonds and stock --
information which, we regret to say, had no slight foundation in
the actual facts. Whereupon he filed his bill in the Circuit Court
of Cook County, Illinois, which, reciting his purchase and
ownership of the stock. the conduct of the president and other
officials of the corporation, as above stated, prayed an injunction
against the Portage Company and its president. In order that the
exact scope of this injunction may be apparent, we quote from the
prayer in the bill, the order of the court being that an injunction
issue as prayed for:
"That a preliminary injunction issue restraining the defendants
and their officers, directors, agents, and servants from issuing or
carrying or allowing to be issued any of the capital stock of said
corporation, and from issuing, selling, pledging, or causing to be
issued or sold or pledged any of the mortgage bonds of said
corporation until the further order of this Court, and also
restraining said defendants and their officers,
Page 163 U. S. 46
directors, servants, and agents from transferring, or allowing
to be transferred upon the books of said corporation any of the
capital stock which has been issued by said Schofield as above
stated, and which is above charged to have been wrongfully,
fraudulently, and improperly issued, or any other fraudulent
capital stock of said company, and that said defendants, their
officers, agents, and servants be also restrained and prohibited
from calling or holding or causing to be called or held any meeting
of the directors of said corporation, or attempting to transact
business at such meeting, and from taking part as an officer or
director at such meeting, unless full notice of such meeting, and
the time and place of holding the same, shall have been given to
each of the above-named directors of said corporation, and not in
that event unless such meeting and meetings shall be notified to be
held, and shall be held at the principal office of said corporation
in the City of Chicago in the State of Illinois."
"And that until such time as said books and papers of said
corporation shall be returned to and kept at its office in the City
of Chicago aforesaid, open to the inspection of your orator, said
defendants will be prohibited and restrained from doing any act or
thing concerning or affecting the financial affairs of said
corporation for the amount of its liabilities or the amount of its
capital stock, and from entering upon the records of said company
any statement or record of its actings or doings."
It is true that the temporary restraining order or temporary
injunction was granted on the 9th day of February, 1882, without
notice, but the defendants were in a few days served with process.
They made no attempt to have the order vacated, but, on the
contrary, on March 20, 1882, the Portage Company filed a cross-bill
seeking to restrain Cable from disposing of the stock he had
purchased, and praying that it be delivered up for cancellation.
Nothing, however, came of this litigation, and it was abandoned in
consequence of negotiations and a settlement between Cable and the
investment company.
Finally, it is insisted that the Omaha Company wrongfully
Page 163 U. S. 47
and fraudulently secured, through the action of the Legislature
of the State of Wisconsin, a transfer of the land grant to itself,
and further that the action of the legislature in making such
transfer did not divest, or attempt to divest, the creditors of the
Portage Company of their legal or equitable rights, nor prevent
them from having the lands appropriated so far as was necessary to
the satisfaction of their debts.
With reference to the first portion of this charge, it is
sufficient to say that there is absolutely no foundation for it in
the testimony. It does not appear that there was any corruption or
attempted corruption by the Omaha Company of any of the members of
the legislature or other officials. Everything it did was open and
above board. At the instance of the officials of the Portage
Company, it consented that a stipulation be introduced into the act
of forfeiture and transfer that it should pay to the governor of
the state the sum of $78,000, to be used in payment of labor claims
for work done on the Portage Company's line, and after the passage
of the act, it did pay the stipulated sum. We are left, therefore,
to the single question whether the act of the legislature, either
in terms or by implication, burdened the transfer with a continuing
obligation for the debts of the Portage Company. No such burden was
in terms imposed. The grant was, so far as the legislative action
discloses, simply taken away from the Portage Company because of a
failure to comply with the conditions under which it had originally
been bestowed upon it. On such failure of the Portage Company, all
its right to the lands ceased. Whatever the legislature might
thereafter do in its behalf was a mere act of grace. No creditor of
the Portage Company had any legal or equitable right to any portion
of those lands, and if the legislature had simply revoked the grant
and resumed possession on behalf of the state, there would be no
pretense of a claim that any such creditor could subject the lands,
or any interest therein, to the satisfaction of his debt. There is
no intimation of a contrary doctrine in the opinion filed in
Angle v. Railway Co., supra. All that was there held was
that the legislative action did not condone, and was not intended
to condone,
Page 163 U. S. 48
any wrongs done by the Omaha Company, and that if the Omaha
Company had been guilty of any fraudulent conduct in consequence of
which the Portage Company had been prevented from earning the
grant, and the legislature thereby induced to revoke it, and bestow
it upon the Omaha Company, the party wronged by those acts of the
Omaha Company was entitled to redress. But here, as we have seen,
although the charges are the same, yet the testimony fails to make
good those charges or to show any fraudulent or wrongful conduct on
the part of the Omaha Company. The legislative act condoned no
wrong, for there was no wrong to condone. It neither placed nor
continued any burden upon the land grant, and hence the mortgage
creditors of the Portage Company, having no lien, legal or
equitable, cannot pursue the lands in the hands of the Omaha
Company.
There is this substantial difference between the
Angle
case and the present: while in each are charges of grievous wrong
on the part of the Omaha Company in consequence of which property
which otherwise would have been subjected to the payment of the
plaintiff's claims was obtained by the Omaha Company, in the
Angle case the Omaha Company demurred, saying there was no
remedy notwithstanding the wrongs alleged. We held that if such
wrongs as were alleged had been committed, the law did furnish a
remedy. In this case, the Omaha Company took issue upon the charge
of having committed such wrongs, and the testimony shows that it
did not commit them. So the proof fails to make good the charges,
and the decree of the circuit court was right, and is
Affirmed.
MR. JUSTICE HARLAN concurs in the result upon the grounds stated
in his opinion at the circuit. 39 F. 143;
252 U. S. 151 U.S.
1-28.