Boston & Maine Railroad v. Graham

179 Mass. 62 | Mass. | 1901

Holmes, C. J.

These are petitions brought under St. 1900, c. 426, for the purpose of having determined the value of stock belonging to stockholders in the Fitchburg Railroad who dissent from the lease of that road to the Boston and Maine Railroad sanctioned by the above named act. The petitions also have an alternative aspect, and allege that the respondents, or earlier holders of their stock, voted in favor of the lease at a meeting held on March 21 and 22,1900, and that therefore they are not entitled to dissent or to have their stock valued and purchased. Two of the petitions also allege that the respondents were not stockholders at the date of the passage of the act, and for that reason also are not entitled to the benefit of it. The respondents demur on the grounds that the court under the act has jurisdiction only to appoint commissioners, and cannot determine the questions raised, and that the facts alleged do not deprive the'respondents of the benefits of the act.

We shall spend no time on the question of procedure. The petitioner had to proceed within thirty days by the terms of the statute. If it did not buy dissenting stock under the statute, it had to take the risk of the lease being held to be void as against the dissenting holders. Dow v. Northern Railroad, 67 N. H. 1. See Durfee v. Old Colony & Fall River Railroad, 5 Allen, 230. Of course it was not bound to admit the right of the stockholder to dissent, Moore v. Sanford, 151 Mass. 285, 286, and it is more convenient to allow it to try all questions in one proceeding than to put it to a separate bill, and merely to allow it to save its rights in this proceeding by a protestando. It is unnecessary to consider whether, if there were time to try first the one question and then the other, we should adopt a different rule, as in Smith v. Valence, 1 Rep. Ch. 90, a bill to redeem with an attempt to dispute the mortgage, or as in the case of a statutory petition for a jury to assess damages for a taking by eminent domain. Pitkin v. Springfield, 112 Mass. 509.

The more important question raised by the demurrers is whether the statute, as a condition of its ratification of an already executed lease, required the lessee, the petitioner, to buy all the stock of any member of either corporation, lessor or lessee, that saw fit to file a written declaration of dissent, although he previously had taken part in the corporate act by which the lease was made, and had voted for it upon the same stock which he now undertakes to sell. It seems to us unreasonable to suppose that the obligation of the lessee was meant to be so large.

Apart from the statute, of course those who had voted for the lease could not complain. Boston, Concord f Montreal Railroad v. Boston & Lowell Railroad, 65 N. H. 393, 400. The statute recognizes that the lease has been approved by a majority of the stockholders, and imparts its authority in the form of a ratification. “ The contract of lease ... as heretofore approved by a majority of the stockholders of each corporation ... is ratified and confirmed.” It seems unlikely that an act thus made irrevocable in its effect upon the corporation should be intended at the same moment for the first time to become revocable as to the member who did it. It is unlikely that the Legislature should see any justice in giving to such a member a right to compel the corporation to buy him out, when such a right never would have been thought of except as a constitutional means of meeting bona fide dissent from an act for which he was responsible. See N. H. St. 1889, c. 5; Pub. Sts. c. 156, § 28. A similar result was reached without the aid of statute in Treadwell v. Salisbury Manuf. Co. 7 Gray, 393, 406.

Apart from the theoretic absurdity to which the respondents’ construction of the statute would lead, that is to say, the possibility that the petitioner might be required to buy all its own stock as well as all that of the lessor, it very well might lead in fact to a relation essentially different from that contemplated by the act, because it very well might result in the lessee becoming the principal owner of the stock of the lessor.

The respondents base their argument upon the words of the act, but the words of the act are far less stringent than the argument implies. It is true that in § 3 the words “ every stockholder” occur. But the provision is that every stockholder shall be deemed to assent to the contract unless he shall file his dissent within ninety days, — which is very different from a provision that every stockholder may file a dissent. The universality of “ every ” is directed toward the obligation to dissent within a certain time, not to the right to dissent, which is left to be determined by whatever tests may be proper. The strongest and indeed the only phrase from which an argument can be drawn comes later. “ The shares of any stockholder dissenting as above specified shall be acquired by the lessee.” But here, again, the universality of the word “ any ” as easily may ' be taken as applying to stockholders having a right to dissent otherwise determined, as to all the stockholders of both roads. One interpretation is as idiomatic and natural as the other, and in our opinion that which we adopt is the only one consistent with justice and sense.

Demurrers overruled.