Hodge v. United States Steel Corp.

EMERY, V. C.

Suit by J. Aspinwall Hodge and others against the United States Steel Corporation and others, to enjoin a retirement of preferred stock. Injunction granted.

R. H. McCarter, Alan H. Strong, and Frank Bergen, for complainants.

Mr. Lindabury and C. L. Corbin, for defendants.

EMERY, V. C. This is an application for a preliminary injunction on a bill filed by stockholders of the United States Steel Corporation to restrain the retirement or redemption of preferred stock by issuing bonds of the company therefor. The plan or scheme for retirement is the one which was in question on the bill filed by Mrs. Berger against the corporation, and the details of the plan were given by me in my opinion in that case (53 Atl. 14), and need not be repeated, except so far as may be necessary for the purpose of indicating the circumstances in which the present suit differs from the Berger suit, and for referring to a feature of the plan which was overlooked in my opinion filed in that suit.

Three complainants are named in the bill, —J. Aspinwall Hodge, as the owner of 100 shares of the preferred stock; William R. Curtis, as the owner of 2,000 shares; and Bernard Smith, as the owner of 500 shares. The affidavits show that the complainant Hodge was the owner of record of 100 shares of preferred stock, bought about a year before the proceedings for conversion were begun, and that he did not assent to the plan. As to the complainant Smith, the affidavits show that at the time of filing the bill he was not the owner of any shares of stock, except shares whose previous owners had assented to the plan. Complainant Curtis, at the time of the bill, was not, nor has he ever been, the owner of record of any shares, nor is there any affidavit of ownership of shares made by him. In the absence of such affidavit showing his ownership and the certificate or certificates of shares which he holds, it cannot be known whether or not the previous holders of his shares, or any of them, have assented to the plan. If such previous holders of either the Smith or Curtis shares have assented, then neither Smith nor Curtis are entitled to a preliminary injunction against the execution of the plan assented to, so far as their rights rest on the ownership of these shares. Trimble v. Refining Co. (Pitney, V. C, 1901) 48 Atl. 912, 914. The by-laws of the company provide (article 5, § 2) "that shares in the capital stock of the company shall be transferred only on the books of the company by the holder thereof in person, or his attorney, upon surrender and cancellation of certificates for a like number of shares." My opinion is that a suit of the present character must be based upon an ownership of record at the time of filing the bill, and that the ownership of shares standing in the name of another will not be sufficient to maintain the suit. The suit, it will be observed, is not one which is brought against a third person to assert the general right of a holder of stock considered as property where ownership of shares transferred in blank, and not actually transferred on the books, might be sufficient evidence of ownership of the stock; but it is a suit brought by a complainant solely in the character of a stockholder against the company itself and its directors to restrain the violation of his rights as a stockholder and to restrain proceedings alleged to be ultra vires and fraudulent against the company. This can be done only by a stockholder who holds a complete title as stockholder under the by-laws of the company, or who, being the owner of the stock, has done everything within his power to complete the title. For the purposes of this motion, complainants' case must, therefore, be considered as based solely on the right of the complainant Hodge, as a single stockholder, filing a bill on behalf of himself and other stockholders. The Berger bill was filed by the complainant solely on her own behalf,and was filed against the corporation itself and the firm of J. P. Morgan & Co. to enjoin the issuing of bonds for stock under the contract called the "Bankers' Contract"; and no directors of the company were made parties as such, but it was charged that four of the firm were directors at the time of the contract, and its validity was assailed upon that ground. The bill in that case sought relief upon four grounds: (1) That the plan, if carried out, would impair complainant's vested rights as a stockholder; (2) that the plan of Issuing bonds to redeem or retire stock was ultra vires and void against complainant or any dissenting stockholder; (3) that the plan was ruinous and disastrous, and imperiled the value of complainant's stock; and (4) that four members of the bankers' firm were directors of the corporation, and that the compensation of $8,000,000 which might be received by the bankers under the bankers' contract was without consideration and illegal, and that the scheme was devised to secure exorbitant commissions by this firm. The answer accepted these issues, and claimed: (1) That the plan of conversion did not impair complainant's vested rights; (2) that it was not ultra vires; and asserted (3) that the plan, including the payment of the compensation named, was beneficial and reasonable. As to the validity of the bankers' contract, in which four of the directors were interested as members of the bankers' firm, it set up a by-law of the company, under which any contract submitted by directors to the stockholders, when approved by a majority of the stockholders, was expressly declared to be valid. They claimed that this by-law applied to the contract, and that the contract had been thus approved.

I reached the conclusion that the first objection taken by complainant in the Berger suit was well founded, and that her vested property rights were impaired. For that reason I did not consider the other objections, except that in the oral announcement of my decision I stated that, as the case then stood before me, the question of the reasonableness of the compensation to the bankers, if it could be raised at all, was not a matter to be determined on ex parte affidavits on preliminary injunction, and must certainly be reserved until final hearing upon full proofs. Upon the appeal the court, as to these issues involved in the Berger Case, decided: First, that the plan of retiring stock by issuing bonds did not impair complainant's vested rights; second, that it was not ultra vires or void, but was the exercise of a power to purchase stock for retirement, given by the general corporation law of 1890, and also of a power to retire or redeem stock out of bonds, given by the law of 1902. As to the reasonableness of the plan and of the compensation paid to the bankers, the court declared that "in the absence of fraud, it is not the province of the court to substitute its judgment for that of the directors and shareholders, and declare that a less expensive or more beneficial plan could have been resorted to successfully."

As to the fourth objection set up in the Berger bill, viz., that the interest of four of the directors in the bankers' contract made it invalid, as against the company or any dissenting stockholder, the court, in its opinion, did not expressly consider or decide the question of the effect of by-laws of this character; but the following clause, near the close of the opinion, would seem to refer to the by-laws. Mr. Justice Van Syckel says: "Nor can any feature of the plan expressly authorized by the by-laws adopted before complainant became a shareholder be the subject of judicial control, so long as it is not inimical to any constitutional mandate; the end to be attained being, as in this case, duly authorized by law." The present bill is filed not only against the corporation and the bankers, but also against all of the directors of the corporation; and the grounds of relief set up in the bill and amended bill, stated generally, are: First, that the plan interferes with complainant's right of property or vested rights; second, that it is ultra vires and void; third, that the defendant company cannot issue the bonds for stock under the law of 1902, because it has not fulfilled the requirements of that law, either as to the payment of dividends or as to the value of assets; fourth, that the scheme was disadvantageous, and would seriously damage the corporation and the stockholder, and that the compensation to the bankers was exorbitant; fifth, that the action of the directors in passing the resolutions for the plan and approving the contract was fraudulent and void, because 15 or more of the board of directors (24 in number) were interested in the syndicate which was formed to assist in carrying out the banker's contract, and to share its profits; and, sixth, that the plan was never properly or legally ratified by the two-thirds vote of the stockholders of the corporation, required by the corporation act, inasmuch as the votes upon the stock held or controlled by the bankers' firm and members of the syndicate should not be counted to make up the necessary two-thirds, and without these votes the requisite number did not approve the reduction of stock.

As to the first ground,—the Impairment of a stockholder's vested or property rights, the decision in the Berger Case that the plan does not impair them is conclusive, and controls the decision upon this motion. As to the second ground,—that the issuing of the bonds to retire stock was ultra vires,—the decision also controls this case, so far as relates to the construction of the powers to issue bonds for stock, which are conferred by the general corporation law of 1896 and the act of 1902; that is, the right to purchase stock for retirement on credit by issuing bonds secured by mortgage. The third ground urgedin this suit was not raised or in issue in the Berger suit. This ground is that the bonds cannot be issued because the corporation, at the time of directing their issue, had not complied with the conditions required by the act of 1902. In the Berger suit the bill alleged (paragraph 4) that, pursuant to the provisions of the act of 1902, the company filed a certificate, as provided for in that act. This allegation was admitted by the answer, and therefore, in the Berger Case, any question as to whether the requirements of the act of 1902 had been complied with, was not only not Involved, but was expressly excluded from consideration or decision by the pleadings and record. This question, therefore, is open for decision in this case, and it is the question which must be first considered on this application. This results from the fact that under the decision of the court on appeal as to the statutory power of corporations to issue bonds to retire stock it is held: (1) That the power was given by the provisions in the act of 1890, which authorized a company to reduce its stock "by purchasing certain shares for retirement" and that this power given by this act of 1896 was conferred in general terms, and without any express statutory conditions or limitations as to the financial condition of the company; (2) that the entire scope and effect of the act of 1902 was only that of fixing express statutory conditions or requirements to a power previously existing under the act of 1896, which conditions and requirements are applicable to all companies having preferred stock; and (3) that the necessary effect of this subsequent act, expressly limiting and restraining the power of conversion previously conferred in general terms, was to repeal, by implication, the previous law of 1890 so far as it allowed the conversion of preferred stock without conditions, and to prevent such conversion, unless the requirements of the law of 1902 were complied with. The memorandum decision filed before the opinion expressly declared that the plan in question was valid under the act of 1890, and was also valid under the act of 1902, but the memorandum did not give the views of the court as to the effect of the law of 1902 upon the previous law. The language of the full opinion is, however, clear on this point, and controls this application. Mr. Justice Van Syckel says, in the opinion: "That while, under the corporation act of 1890, every corporation which had issued preferred stock, might, by purchase of shares, convert its preferred stock into bonds without regard to whether or not it was in the sound financial condition contemplated by the act of 1902, the act of 1902 is (a) restraining, and not an enlarging act it provides the conditions upon which preferred stock may be purchased and retired by mortgage bonds, and thereby excludes the adoption of any other method. 'Expressio unlus est exclusio alterius.' The prescribed conditions must exist to render the retirement by purchase of shares lawful." And again: "The fact that the act of 1902 excludes all other methods for retiring shares by purchase, and that it cannot be applied, unless it is made to appear that the assets, after deducting the amount of indebtedness, as least equal the amount of preferred stock outstanding, is in the public interest for the protection of creditors." As applied to corporations which did possess the requirements of the act of 1902, and reading the memorandum decision and the opinion together, it is held that both acts still continue valid and in force. The issue of bonds for stock was held to be valid in the Berger Case, "as the purchase of certain shares for retirement" under the act of 1896, and also "as the retirement or redemption of stock out of bonds or the proceeds of bonds" under the act of 1902. This was because in that case the fulfillment of the requirements of the act of 1902 was not questioned or was admitted. As applied to those corporations which have preferred stock, and which do not meet the requirements of the act of 1902, the previous act of 1896 does not continue in force, but is repealed by the subsequent act. The result of this construction as to the two statutes therefore is that, if the defendant corporation does not meet the requirements of the law of 1902, it has no power to issue the bonds under either law.

In the briefs submitted after the memorandum decision, but before the full opinion, it was contended by defendants' counsel that, as the memorandum decision declared the issue was valid under the law of 1896, as well as under the law of 1902, the question of meeting the requirements of the law of 1902 was not important or decisive. But the opinion of the court, showing precisely the relation of the two laws, and the express declaration that all other methods of retiring preferred stock by purchase are now excluded by the act of 1902, and that corporation must now have the requirements of this latter act, renders this view untenable, and makes the question whether the corporation does meet these requirements of the act of 1902 the first question to be determined. As this is a purely legal question, involving the construction of a statute, and has been fully argued, it should be decided on this application, and there is no reason for withholding decision for fuller consideration at final hearing. The conditions or requirements of the act of 1902, entitling corporations that have issued preferred stock to redeem and retire the preferred stock, are four in number, and it is claimed by complainant that two of these conditions have not been met The first requirement not met, as complainant claims, is that the company at the time of the meeting had not paid dividends for the time required by the statute, and the proceedings to retire the stock were, therefore, prematurely taken. The secondrequirement of the act not met as complainant claims, was the condition relating to the value of the assets required. As to the assets the act of 1902 requires that at the time of the meeting the assets of the company, "after deducting the amount of its indebtedness, shall be certified, in the judgment of the officers making such certificate, to be at least equal to the amount of preferred stock issued and outstanding." The designated officers, the president and secretary, have filed this certificate, and upon the affidavits filed there can be no question whatever as to their honesty and good faith in making this certificate as to value. It was held by the court on appeal in the Berger Case that this certificate of the officers was not conclusive evidence of the financial condition of the company, but might be shown to be false, and action in pursuance of it arrested. The question, therefore, la whether in relation to the value of the assets the complainant has shown such a case as entitles him to restrain the issue of the bonds pending the final hearing. The affidavits filed by the defendant company in this question of the value of the assets are full, complete, and detailed, and are made by persons entirely familiar with the property, or portions of the property, as to whose value they affirm. The affidavits as to value filed by complainant are, on the contrary, general, vague, and made without special knowledge or examination, and the credibility of the principal affiant on the part of the complainant is seriously impaired by his own admissions in his latest affidavit. Upon these affidavits as to value I would not be justified in enjoining the issue of the bonds pending the final hearing. The matter principally relied on at the argument for supporting the claim that the assets were overvalued were the statements made by the president, Mr. Schwab, in the course of a litigation two years previous. These statements were made, however, in reference to the value of the assets of the Carnegie Steel Company, Limited, which comprise only a portion of the assets of the steel corporation. As to this contention two observations may be made: First. The previous statements of its president are not binding on the corporation, or admissible against it, except as affecting the credibility of this single witness; and the only question is whether there is any ground for holding that the credibility of his present affidavit as to value is impeached. I think there is not. Second. The entire assets of the steel corporation were subsequently made the basis for its issue of preferred stock, part of which complainant holds. Such preferred stock, under the corporation act (section 18), cannot exceed two-thirds of the capital stock paid for in cash or property, and is not assessable for debts. Complainant, therefore, in attacking the valuation of the property upon which the preferred stock of the corporation was issued to him and to others as full-paid stock, is questioning the valuation upon which his own stock was based. A creditor applying for injunction under the act of 1902 might question this valuation of the property for which the preferred stock was issued, and it may be that on final healing it might be concluded that a preferred stockholder, whose stock was based on the alleged overvaluation, might also be held entitled to question it. My present view, however, is that the preferred stockholder, as against the company, cannot be heard to assert that a valuation which is substantially the valuation upon which his own stock was issued is an overvaluation under the statute, and that he must show a loss or shortage in the assets, arising subsequently to the original issue of his stock, in order to entitle him to question the valuation under the statute. This objection to issuing the bonds is therefore overruled, and a preliminary injunction should not be based thereon.

As to the dividends, the language of the act is, "Every corporation organized under this act * * * that shall have issued preferred stock entitling the holders thereof to receive dividends at a rate exceeding five per centum per annum, and that shall have continuously declared and paid dividends at such rate on such preferred stock for the period of at least one year next preceding the meeting," etc. The corporation act provides (section 30) that "no corporation shall make dividends except from the surplus or net profits," and by the amended certificate of incorporation of the company it was provided (article 4): "The holders of the preferred stock shall be entitled to receive when and as declared yearly dividends at the rate of seven per cent. per annum, payable quarterly on dates to be fixed by the by-laws." The by-laws provide (article 5, § 5): "The board of directors may declare dividends from the surplus or net profits of the company over and above the amount which from time to time may be fixed by the board as the amount to be reserved as working capital. The dates for the declaration of dividends upon the preferred stock and upon the common stock of the company shall be the days fixed by the by-laws for the regular monthly meetings of the board of directors in the months of April, July, October and January, in each year, on which days the board of directors, in its discretion, shall declare what, if any, dividends shall be declared upon the preferred stock, and the common stock, shall be payable quarterly on the Sixth Wednesday next after the several dates of the declaration thereof." The company was incorporated on February 25, 1901, by the filing of its original certificate of incorporation. An amended certificate was filed April 1, 1901. The first quarterly dividend on the preferred stock was declared on July 2, 1901, and was payable and paid on August 7, 1901; the second quarterly dividend was declared October 1, 1901, and paid November 6, 1901;paying dividends annually must make at least two regular and annual payments before the meeting, one paying semiannually must make at least three payments before the meeting, and one paying quarterly must make at least five quarterly payments. In this way, and in no other, so far as I can see, can every word of this provision of the statute as to the continuous declaration and payment of dividends for the period of a year before the meeting be given force and effect, and, if this meaning is given, all corporations paying dividends regularly on their preferred stock come equally within the law, and receive equally the benefit of the law, and none are or can be excluded, as they may be by any other construction.

Taking, therefore, the natural meaning of the words, the grammatical construction of the whole clause, the effective meaning of every word in the clause, and the object of the clause, I reach the conclusion that the words "for the period of at least one year" apply to and qualify the "continuous declaration and payment of dividends" required by the statute, and are not to be treated as descriptive of and indicating the source or origin of the dividends themselves, or the time during which the earnings out of which the dividends declared and paid during the year have been accumulated or earned. This conclusion harmonizes with the decisions above referred to, in which the same construction was given to provisions in other statutes, requiring the performance of continuous acts for a fixed period, and which are binding upon me, as establishing a settled rule of statutory construction that controls this case. With this view of the meaning of the statute, I conclude that the meeting of the stockholders was prematurely called, and that the retirement of stock under the resolution passed at that meeting must be enjoined. This conclusion render's any expression of opinion in reference to the other objections to the resolutions or the contract unnecessary, and, according to my present views, such opinion on my part would be altogether obiter. There Is, however, one matter which should be mentioned, as it has not been referred to by counsel on either side, or in the opinion of the court on appeal, and it is a matter which has, or may have, a material bearing in reference to carrying out a portion of the plan for conversion, as it is now disclosed upon the record. It relates to the circular to the stockholders, which is part of the plan. In my opinion in the Berger Case I stated that the circular to the stockholders containing the terms and conditions of the offer to preferred stockholders of the right to subscribe for bonds to be paid for by stock had not been submitted to the court. This statement was a mistake, arising from the accidental overlooking of the circular. The mistake was not discovered until after the submission of the cause on appeal, and pending the decision on appeal I thought it proper to withhold any expression of views relating to the circular. The decision might proceed upon grounds which made the matter of the circular of no importance, and the omission would probably be called to the attention of the court by counsel, if it should be thought material. I have accordingly withheld this expression, although from the time my attention was first called to the circular it seemed to me to have an important bearing on the stockholders' rights to subscribe for the bonds. The circular was not specially referred to on the appeal, either in the opinion of the court or in the briefs of counsel, and the mistake made in my opinion, if observed, was not considered as affecting the decision on the appeal from my order for injunction. This order for injunction was an order enjoining the execution and delivery of bonds under the bankers' contract other than the bonds to be issued for cash. The order did not enjoin proceedings on the resolutions, or the issuing of the circular, but, of course, pending the appeal no issuance of the circular was contemplated, nor has it yet been sent out. The court of errors and appeals has reversed the order enjoining the issuing of the bonds under the bankers' contract to retire the stock, and in its opinion the court has declared that under the resolutions the like option to purchase the bonds by stock is to be given to all stockholders, and that the same opportunity to subscribe must be given to all. The circular to stockholders is the method by which the option is given, and is the paper which describes the terms and conditions of the offer. The question which occurred to me on reading the circular was whether the offer made under this circular did give to each and every stockholder a like reasonable opportunity to subscribe for and acquire the bonds.

Questions as to the reasonable manner of bringing an offer of this character to the attention of the stockholders, and as to the reasonable time and method to be given to them to accept the offer, are ordinarily matters to be determined, in the first instance, at least, by the board of directors of the company. The protection of the rights of all stockholders to a reasonable opportunity to receive and accept the offer is committed to the board as a part of their duty to the stockholders, and this duty was still incumbent on them after the approval of the contract, because the contract does not provide for these details. A part of this duty to the stockholders still resting on the board of directors after the approval of the contract is also to see that the offer to the stockholders is substantially the offer contemplated by the resolutions and contract which have been approved by the stockholders. If the directors cause an offer to be made to the stockholders, which, in any substantial requests, alters the terms of the offer, as directed by the resolutions and contract, to the injury of the stockholders, and deprives, or may deprive them, or any of them, of the opportunity to subscribe for and receive the bonds, the questionarises whether the issuance of the bonds under such terms should not be enjoined. Such substantial question arises, as it seems to me, in the present case, and as it was not referred to by counsel I now bring it to their attention on the first opportunity. The resolutions provided, among other things, that, to the extent that holders thereof consented thereto, 2,000,000 shares of the preferred stock should be redeemed and retired out of bonds, or the proceeds of bonds, and "that a reasonable opportunity shall be offered by public advertisement to the preferred stockholders of record, upon a date to be fixed and stated in such offer, approximately to the extent of 40 per cent. of their several holdings to subscribe for and to take at par two million of such bonds, and to make payment therefor in preferred stock at par," etc. The resolutions also approved the contract with J. P. Morgan & Co. (the bankers' contract), and in reference to the character of the offer this contract provided that on behalf of the company "the bankers, by public advertisement, will offer to every preferred stockholder of record on a date to be stated and fixed in the offer for and during a period of at least 30 days after a date or dates to be stated in such offer the preferential opportunity to subscribe for and to take the bonds and to pay the subscription in stock, not to exceed 40 per cent. of their several holdings, except at the discretion of the bankers." There was no provision either in the resolutions or the contract authorizing either the directors or the bankers to withdraw or cancel, either wholly or as to any stockholder, the offer after it had been accepted by the stockholders. The circular to the stockholders issued by the bankers (Exhibit 6) was issued for account and on behalf of the United States Steel Corporation, and under the provisions of the bankers' contract with the corporation, "and offers to every holder of pre. ferred stock of the corporation of record at the close of business upon the 1st day of July, 1902, for and during the period of 30 days from and after such date (1) the preferential opportunity to subscribe for and take bonds of the corporation, as the stockholders may severally and respectively desire, not exceeding in any instance 40 per cent. of the respective holdings (except at the discretion of the bankers)." The subscription will not be received except upon delivery to the bankers and deposit with them of certificates duly indorsed for transfer for the par amount of the stockholder's subscription payable in stock. The offer contains this further clause: "At any time prior to the delivery of all the bonds hereunder, the undersigned [the bankers], in their discretion, in whole or in part, may withdraw and cancel the offer herein made, as to any or all of the undelivered bonds." Advertisement of the notice of withdrawal in two newspapers in the city of New York is to be a sufficient withdrawal and notice of it, and upon withdrawal the deposited shares are to be returned upon surrender of the certificates issued therefor. The answer in this case says (end of paragraph 12) "that after the stockholders meeting of May 19, 1902, the board of directors of the defendant corporation approved a circular to the preferred stockholders, of which a copy is annexed as Exhibit No. 6, but that the same has not been as yet sent to the stockholders." Under the terms of this circular the following questions seem to arise as to the effect of the provision authorizing the bankers to withdraw or cancel the offer made on behalf of the company as to all or any of the bonds not delivered.

First. Whether the option to withdraw the offer as to all of the bonds does not give to the agents of the company appointed to make the offer of the bonds on its behalf, and to these agents alone, the right to cancel, in their discretion, the proceedings directed by the resolutions and contract for the retirement of the stock, and whether such power can under the resolutions and contract, be committed to the agents who make the offer.

Second. Whether the provision giving the bankers the option to reject the offer as to any of the undelivered bonds, taken in con nection with the right expressly given by the contract to the bankers themselves, or any one with their consent, to subscribe for more than 40 per cent. of their holdings, does not give to the bankers and their appointees a preference in the purchase. In other words, if a stockholder deposits his stock on these terms, and accepts an offer with this option to the bankers contained in it, do not the bankers, under the provision of the contract and circular, if accepted, have the power to select the persons who are to have the bonds; and may they not, if the offer is to be sent in the present form, take the entire issue, or so much as they choose, for themselves and the syndicate? By the syndicate agreement (clause 18), the bankers agree, to deliver to the syndicate the bonds received by them from the company, or the proceeds thereof.

Third. If this clause in the circular has this effect as to the withdrawal of the offer, either as to all or as to any of the bonds, should not the issue of the circular in its present form, with tills clause, as part of the plan, be enjoined, even if the resolutions and contract be finally held valid? I should have considered this question as to the form of the circular had I reached the conclusion that the resolutions and contract were valid, and it may be a question in the cause to be considered by the court on appeal if an appeal be taken, and for the consideration of the defendant company and the directors if no appeal be taken and further proceedings for conversion under the act be taken.

I will advise a preliminary injunction be granted restraining the issue of bonds under the resolutions, but upon the terms that, if defendants desire to appeal, complainantsshall consent that the cause be set down for hearing at the next term of the court of errors and appeals.