62 F. Supp. 207 | E.D. Va. | 1945
In the course of reorganization of the Seaboard Air Line Railway Company, the Reorganization Managers or Committee, as authorized by an order of this court dated February 8, 1944, purchased $1,574,000 principal amount of Georgia, Florida & Alabama Railroad Company Bonds (hereinafter called the G. F. & A.) paying therefor $750 per $1,000 bond, with funds held by the Seaboard Receivers. The amount purchased represents about 90% of the outstanding first mortgage bonds of the Railroad Company, which, prior to the receivership of the Seaboard, had been a leased line and subsequently, after disaffirmance of the lease by the Receivers of the Seaboard, had been operated by them under court orders.
On July 12,1944 the G. F. & A. filed its petition in the United States District Court for the Middle District of Georgia seeking
The question now to be decided is whether the Reorganization Committee holds good title to the bonds for the benefit of the creditors of the Seaboard Air Line Railway, as a part of the plan for reorganization of the Seaboard, or whether the bonds are impressed with a trust in favor of the G.F. & A. or its Trustee subject to their order and demand, upon payment to the Reorganization Committee, or the Receivers of the Seaboard, of the cost of acquisition of said bonds together with interest thereon.
The contention of the G.F.& A. and its bankruptcy trustee, is that the trust arose because the bonds were purchased from funds due from the Seaboard Receivers to the G.F.& A. from operation of the G.F.& A. by the Receivers. This fact is denied by the Reorganization Committee and the Receivers who say that, as provided in the order of this court for the purchase of the bonds dated February 8, 1944, the purchase price for the bonds was paid from cash in the hands of the Receivers belonging to creditors of the Seaboard Air Line Railway, and that no funds of or belonging to the G.F.& A. were used or applied for that purpose, and furthermore that there never has been up to the present time, and is not now, any sum due and payable to the G.F. & A. under the operating arrangement. The Bankers Trust Company and Mr. Page as mortgage trustees for the G.F.& A bonds, have also filed a limited appearance and answer to the affirmative allegations contained in the answer of the G.F.& A to the petition of the Reorganization Committee. In this answer these trustees contend that if now or hereafter any sum becomes payable by the Seaboard Receivers to the G.F. & A. or its bankruptcy trustee, under the operating arrangement, such sums (less proper court expenses) must be paid to the bankruptcy trustee for the benefit equally and ratably of all the outstanding bonds, in accordance with the provisions of the mortgage and the impounding orders heretofore entered by the Georgia Court in favor of the mortgage trustee affecting income from the operation of the Railroad. They expressly deny that this court has jurisdiction and authority to charge the cost of acquisition of the bonds by the Reorganization Committee against the sum, if any, now or hereafter due and payable by the Seaboard Receivers to the G.F.& A.
It is apparent that the underlying question in the controversy is to whom did the funds used for .the purchase of the bonds belong — to the Seaboard creditors or to the G.F.&A. ? Incidental to this question is the further one — whether there was on February 8, 1944 when the purchase was made, any sum payable by the Receivers to the G.F.& A. And another question presented is whether the relations of the Seaboard Receivers to the G.F.& A. in any way constitute a trust or fiduciary relationship
To resolve these questions it is necessary to give an historical outline of the whole relationship of the Seaboard Air Line Railway and its Receivers, to the G.F.& A. The story is a rather long one but the facts are not really in dispute. So far as possible the history will be related chronologically.
The present Georgia, Florida & Alabama Railroad Company was organized or recapitalized in 1927 as the successor to a railroad company of the same name. The railroad line consisting now of about 132 miles, extends generally from Richland, Georgia, to Tallahassee, Florida. Its capitalization consists of $1,750,000 par value of first mortgage 6% bonds outstanding and in the hands of the public on February 8, 1944. The principal and interest accumulated and unpaid to January 1, 1944, amounted to $3,-611,562.50. Its capital stock consists of— 1st. pfd. 5%, 10,000 shares, par value of $100 each, all outstanding; 2d pfd. 4% to 5%, 5,000 shares, par value $100 each, all outstanding, and common stock without par value, 10,000 shares. Upon its recapitalization the bonds of the new railroad were sold to the public, its common stock was issued to the Seaboard Air Line Railway, and its preferred stocks were also issued to former interests or to the public. The Company leased all of its property from Tallahassee, Florida, to Richland, Georgia, together with its rolling stock and other property, to the Seaboard, which agreed to pay net rentals sufficient to pay the interest and dividends on the bonds and preferred stocks; and also taxes and operating expenses. These payments were made by the Seaboard until it went into general receivership in the Eastern District of Virginia on December 23, 1930, with ancillary receivership in the Southern District of Florida.
After the Seaboard receivership the Receivers disaffirmed the lease and endeavored to surrender the property to the G.F. & A. Corporation; but the latter refused to take it back and operate it, and successfully opposed the petition of the Seaboard Receivers to the Interstate Commerce Commission to abandon the operation of the property. The Receivers were, therefore, by virtue of this exercise of public authority, forced to continue the operation of the G.F.& A. In consequence various questions and controversies arose growing out of the operation. In that situation on March 17, 1936, a written proposal for the continued operation of the G.F.& A. by the Seaboard Receivers was made to them by the G.F.& A. Bondholders Protective Committee and its mortgage trustees, and by the G.F.& A. Corporation and its Georgia Receivers. This proposal is printed in full in Vol. XII of the record of the Seaboard receivership, pp. 10295 to 10304, and is an exhibit in the case. The proposal, after dealing with various matters in controversy and not now material, included the following provisions: (1) The accounting between the G.F.& A. and the Seaboard Receivers was settled and determined without claim of either against the other up to and including December 31, 1934; (2) the operation of the G.F.& A. subsequent to December 31, 1934, to be for the account of the G.F.& A. and its Receivers and the accounting “shall be determined upon the basis of the general formula subject to any changes therein which may be urged by any party to the Seaboard receivership proceedings, or by any of the G.F.& A. interests there against and which may be approved by the Seaboard receivership courts or either of them (with certain exceptions not here material)”; (3) the Seaboard Receivers to have a lien and charge against the G.F.& A. property in their possession prior to the G.F.& A. mortgage and have other liens thereon other than tax liens to the amount of any deficit resulting after December 31, 1934 from the operation, and also for all amounts expended by them after December 31, 1934 and chargeable to capital account for additions, betterments and construction work as authorized and approved by the Seaboard Receivership courts or either thereof after notice to the G.F.&A. and its Receivers and its mortgage trustees; (4) operation of the G.F. & A. properties by the Seaboard Receivers to be subject to termination and return by the Seaboard Receivers of the properties to the G.F.& A. Receivers or their successors to the right of possession, on six months written notice from the Seaboard Receivers to the G.F.& A. interests who are parties to this agreement, or on similar notice to the Seaboard Receivers from any one directed by the G.F.& A. receivership court, or otherwise, properly authorized to give such notice; (5) upon such
The proposal was conditioned upon the approval of the Seaboard and G.F.& A. receivership courts and the entry of appropriate orders and decrees, with the consent or acquiescence of all parties to the respective receivership proceedings. This proposal was formally reported to the respective courts and approved by orders entered by the Virginia Court on April 10, 1936; by the Florida Court on April 29, 1936, and by the Georgia Court on April 27, 1936. (See printed Receivership Record Vol. XII, pp. 10315, et seq.; Vol. XIII, pp. 10458, et seq. and 10477, et seq., also filed as exhibits in this case.)
The G.F.&A. has been operated in accordance with these court orders up to the present time. After the institution of the section 77 reorganization proceeding, the Georgia Court specifically ordered that the operating agreement should continue in effect as therein provided. No notice of discontinuance has been given by either party to the other.
The semi-annual statements of the operating accounts from January 1, 1935 were regularly and continuously submitted by the Seaboard Receivers to the G.F.&A. Receivers until 1941. During 1941 and to June 20, 1943, the special master had under consideration proposed plans for the reorganization of the Seaboard Air Line Railway. Several elaborate and detailed plans were submitted and studied. The problem was largely affected by the respective earning capacities of the numerous separate Divisions of the Railway, the earnings dependent importantly upon the formula to be applied for the segregation of earnings of the System and the allocation thereof to the several Divisions. Four separate for-mulae were under consideration. The preparation of statements necessary for the master’s consideration imposed a very great burden upon the Receivers’ clerical and bookkeeping department. To obtain some temporary relief the Receivers’ auditor, Mr. Jones, proposed to the special master that preparation of statements under the general formula should be temporarily suspended. This was approved by the master with the acquiescence of all interests appearing before him. The Georgia Receiver of the G.F.& A. was so notified and interposed no objection.
A Mr. W. H. Simpson, a substantial merchant or manufacturer of South Carolina, had become interested in some of the Seaboard securities, and actively participated in many of the hearings before the special master. In March 1943 he, in association with Mr. W. G. Borer, a Philadelphia stock broker and dealer in securities, bought the whole issue of the first preferred stock of the G.F.& A. ($1,000,000) for about $5,000, Mr. Simpson taking 8,000 shares. By reason of the default of payment of dividends on this stock the voting power shifted to it and Mr. Simpson was elected president and Mr. Borer, vice president of the G.F.& A. Mr. Simpson filed a proposed plan of reorganization for the Seaboard with the special master (see master’s report, printed pages 227, 228) which made no provision for beneficial treatment of the preferred or common stocks of the G.F.& A., but did suggest a reorganization of the G.F.& A. under section 77.
On July 20, 1943 the master filed his elaborate report and plan for the reorganization of the Seaboard. All parties in interest were notified by court order by Judge Way that exceptions, if any, would be heard on October 18, 1943. Owing to the regrettable illness of Judge Way and his subsequent death, this hearing occurred beginning October 25, 1943, before Judge Akerman of the Southern District of Florida, and the writer of this opinion, sitting jointly. Messrs. Simpson and Borer personally participated in this hearing and Mr. Borer has attended most, if not all, of the various subsequent hearings affecting the Seaboard, and has given the court the benefit of his views from time to time on matters in which he was particularly interested. In general he has been favorable to the reorganization plan with the exception of a few particular matters including those affecting the G.F.& A.
The opinion of this court was filed on December 15, 1943 stating the principles applied by the court in ratifying the plan with modifications. Guaranty Trust Co. et al. v. Seaboard Air Line R., D.C., 53 F. Supp. 672. The situation with respect to the G.F.& A. will be found outlined on page 695 of the opinion in 53 F.Supp. It was there said:
“The average net earnings of the Line (G.F.&A.) for the five-year period are only $3,623. The Line had deficits in 1937 to 1939 inclusive, and earnings of only $1,606 in 1940. The principal and interest to January 1, 1944, of bonds publicly held aggregated $3,611,565.50. * * * As the available proportion of the new capitalization for this Division was not sufficient even at par values to equal the claim, principal and interest, on the bonds, it is obvious that there was no value in the preferred stock. Consequently there is no basis on which it can equitably participate in the reorganization.”
An appeal was taken from the decree of the Virginia Court by certain bondholders of the Georgia & Alabama Division and
After the purchase of the G.F.& A. preferred stock by Mr. Simpson in March 1943, he requested the Seaboard Receivers to furnish him with operating statements of the G.F.& A. Under the operating orders these statements were to be prepared in accordance with the general formula of 1932. On September 30, 1943 the Receivers furnished the statements for the years 1941 and 1942, and on December 10, 1943, they furnished statements (partially estimated) for the ten-year period of January 1, 1935 to December 31, 1944, which showed deficits for the years 1935 to 1939, with final credit for the ten-year period of $211,000. The master’s report and plan for reorganization had treated earnings of the several Divisions largely on the so-called Kennedy formula. The application of this formula to some of the Divisions resulted in better earnings statements. Mr. Simpson requested the Receivers to give him figures for the G.F. & A. using the Kennedy formula. On February 23, 1944 such a statement was given to Mr. Simpson by the Receivers which showed under the Kennedy formula an apparent credit for the G.F.& A. for the ten-year period, 1935 to 1943, of $1,117,000. Some of the G.F.& A. interests informally indicated to the Receivers that they would prefer to have the operating orders modified or clarified by the court by the substitution of the Kennedy formula for the general formula; but as no one made any application to the court for this purpose, the Receivers took the initiative by asking the Florida Court for instructions and in May 1944 the Florida Court, after notice to and acquiescence of all parties in interest, including the Georgia Receiver of the G.F.& A., adopted the Kennedy formula for the G.F.& A. operating account. And subsequently with the concurrence of all the G.F.& A. interests the Virginia Court likewise approved the Kennedy formula for the G.F.& A.
At the recent hearing in this court the G.F.& A. Exhibit No. 9, shows a “tentative” credit to the G.F.& A. for the ten-year period ending December 31, 1944, in the amount of $1,461,044, computed subject to the explanatory notes. But, of course, under the operating orders no part of this sum is now due and payable by the Seaboard Receivers to the G.F.& A. because there has been no termination of the operating arrangement and the final sum, if any, will not be ascertained until after the expiration of six months’ notice for termination when given. It is also important to note that under the operating agreement the “tentative” balance is subject to deductions for subsequent deficits, if any, and maintenance and betterments to the physical property of the Railway; and there is uncontradicted evidence in the record that there has been, owing to war conditions, a very considerable amount of deferred maintenance and substantial betterments, especially with respect to the renewal of rails, that must be made as soon as materials therefor are available. Mr. Powell, one of the Seaboard Receivers, testified that the probable cost of this deferred maintenance and badly needed betterments at current prices would probably amount to about $1,-300,000, and that for the physical safety of the Road, these improvements ought to be made as soon as possible and should have been made before this had it been possible to do so under existing war conditions.
The operating account for the ten-year period has not yet been accepted and approved by the bankruptcy trustee of the G.F.& A.; and in the section 77 case now pending in Georgia, the G.F.& A. filed a petition to obtain an order of court that the accounting be under the jurisdiction of the Georgia Court. On a hearing on that petition it appears that Judge Lovett suggested or authorized Mr. Dure as Trustee, to intervene and become a party in this court for purposes of the accounting, and possibly other relief. This has been done, and recently, after hearing, an order of this court was passed providing that any objections to the accounting statement to be made by the G.F.& A. Trustee should be filed on or before August 20, 1945, after which a hearing would be had if any exceptions are filed. Mr. Dure as Trustee
Heretofore from time to time during the pendency of the Seaboard receivership, each of the Trustees holding underlying or general mortgages of the Seaboard, have respectively filed mortgage foreclosure proceedings and obtained impounding orders with respect to earnings applicable to their several mortgages. The mortgage trustees of the G.F.& A. filed such a mortgage foreclosure case in the Middle District of Georgia on April 12, 1935, and subsequently obtained an impounding order in their favor with respect specifically to any earnings that might be subsequently payable to the G.F.& A. from the Seaboard Receivers under the operating orders. After the section 77 proceeding in the Georgia court these mortgage trustees on August 5, 1944, obtained an additional order extending and making effective the prior impounding order for the section 77 proceeding.
The only question now presented to the court is — where is the legal or equitable title to the G.F.& A. bonds now held by the Reorganization Committee of the Seaboard. They contend that both the legal and equitable title is in them. 'On the other hand the G.F.& A. interests contend that while the legal title is in the Reorganization Committee, they hold the bonds impressed with a trust subject to an option in favor of the G.F.&A. to obtain legal title to the bonds upon payment of $750 per $1,000 bond, plus interest on the sum advanced by the Reorganization Committee for that purpose.
The first contention of the G.F.& A. is that the bonds were paid for by moneys held by the Receivers for the account of the G.F.& A. and then payable to it; or at least that it should be held that the cost of the bonds should be charged against the G.F.& A. in the operating account. This contention is clearly untenable. Under the operating orders there is not now and never has been in the past any sum of money due from the Seaboard Receivers to the G.F.&A.; and whether on final accounting there will be any stun due and payable is still a matter of uncertainty. It is also presently uncertain when the operating agreement will be terminated. Evidently the Georgia Trustee is not now prepared to make a recommendation to the Georgia Court that it should be terminated. Even if the Georgia Court promptly decides to authorize its Trustee to give the six months notice for termination, I understand the approval of the Interstate Commerce Commission would have to be obtained before independent operation of the Road by the G.F.& A. or satisfactory arrangement made for its continuation in the public interest. Likewise I assume that if this court should now authorize the Seaboard Receivers to give notice of termination, approval of the Interstate Commerce Commission would also be necessary. It is well known that at the present time railroad operations are largely under the control of the Interstate Commerce Commission in the public interest. And if the operation must be continued by the Receivers for a considerable time in the future, the cost of much needed deferred maintenance and betterments will probably greatly reduce or exhaust the present “tentative” credit. It is, of course, not proposed by the Seaboard Receivers to incur extensive costs of betterments in the immediate future while the Georgia Court has under consideration the petition for giving notice of termination. And I understand that authority to make such betterments should first be obtained from the Florida Court, after notice to the G. F. & A. Trustee.
Apart from this consideration, there is clearly no authority under the present operating orders to charge the purchase price of the bonds to the operating account. And this court clearly would have no authority to make such a charge because if there were now presently due and payable a credit balance to the G. F. & A., it would as a matter of law have to be
The G. F. & A. interests now make a broader claim. The contention is that the relations between the Seaboard Receivership and the G. F. & A. are such that in equity and good conscience this court should require the Reorganization Committee to hold the bonds subject to an option in favor of the G. F. & A. to purchase them at the price paid for them by the Reorganization Committee, plus interest. I am unable to find adequate basis for this contention in the undisputed history of the matter; but I will comment on the various considerations which have been urged by counsel for the G. F. & A. Receiver.
They say that the Seaboard Receivers were Trustees for the G. F. & A. and are seeking to make a profit out of their dealing with the trust res. It is not contended that there was any express written trust but that the circumstances give rise to what is referred to as a constructive or resulting trust.
The relevant facts are these. Before the Seaboard receivership in 1930 the G. F. & A. was the lessor and the Seaboard the lessee. After appointment, the .Seaboard Receivers disaffirmed the lease and tried to surrender the property to the G. F. & A. It refused to resume the operation and successfully opposed the Receivers’ petition to the Interstate Commerce Commission for abandonment of the property. Subsequently the operating arrangement was proposed by all the G. F. & A. interests and, with the assent of the Receivers, was approved by the several courts. I do not think the resulting relationship constitutes a trust of any character. Certainly the relationship of lessor and lessee was not one of trust; that is conceded. It is contended, however, that the continuation of the operation which had originally been under a lease, on different terms of accounting, changed the relationship from that of debtor and creditor to that of a trusteeship. No authority is cited for the proposition, and I know of none. The nearest analogy would seem to be that furnished by the cases of Philadelphia Co. v. Dipple, 312 U.S. 168, 176, 61 S.Ct. 538, 85 L.Ed. 651, and Palmer v. Webster & Atlas Bank, 312 U.S. 156, 61 S.Ct. 542, 85 L.Ed. 642. In the former case the trustee under section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, continued, pending decision as to dis-affirmance, the operation of subsidiary leased street railway lines. It was held that the original relation of debtor and creditor under the leases continued. In the latter case the trustees under section 77 of the Bankruptcy Act disaffirmed but were obliged by a provision in that Act to continue operation of a former leased line. It was held that they were not agents conducting the business of the lessors and were not liable for taxes on the lessors’ property under the federal statute. 28 U. S.C.A. § 124(a). See also Railway & Express Co. v. United States, 56 F.2d 687, 703, 74 Ct.Cl. 191.
It seems rather extreme to spell out a trust relationship in this situation where the enforced continuance of operation of the leased line was imposed upon the Seaboard Receivers by public authority against their wish and to the possible detriment of the Seaboard secured creditors. At the most the duties of the Seaboard Receivers under the operating orders were no greater than those of agents of the G. F. & A. for the operation of the Road. As such agents it may be assumed that they were fiduciaries with respect to the particular subject matter of the agency in the sense that they were under the duty to operate the G. F. & A. Railroad with reasonable care and fidelity and to render true and accurate accounts of their operations. But the scope of the agency did not give them any rights, powers, duties or responsibilities with respect to the financing or general affairs of the G. F. & A. Clearly the matter of the -purchase of the G. F. & A. bonds under order of this court from money belonging to creditors of the Seaboard
Another argument made for the G. F. & A. is that the Seaboard Receivers stand only in the shoes of the Seaboard Air Line Railway; that about $1,000,000 is due and payable from the Seaboard Air Line Railway Company for unpaid rentals due at the time of the receivership of the Seaboard under the lease of the G. F. & A. But this contention is not here applicable. There is no question now arising between the Seaboard Company and the G. F. & A. The latter with respect to unpaid rentals is merely a common and unsecured creditor against an insolvent corporation. It has been perfectly evident for a long time that the Seaboard System has been operated by the courts for the benefit of its secured creditors only.
It is also argued for the G. F. & A. that the Seaboard Receivers exercised bad faith toward the G. F. & A. in the purchase of the bonds. In support of this contention it is said that the Receivers, knowing that there was a large credit balance in favor of the G. F. & A. under the operating accounts, concealed that fact from the G. F. & A. and nevertheless recommended to this court that the G. F. & A. bonds should be purchased with moneys known to be available to the G. F. & A. and which, if they had been paid to it, would have enabled it to buy the bonds at a discount. This contention is contrary to the evidence in the case. There was no concealment regarding the accounts by the Receivers, nor did they initiate the purchase of the G. F. & A. Bonds. The purchase was made under an order of court on the petition of the Reorganization Committee as an initial step to carry out the plan of reorganization which had been approved by the court. As stated by Col. Anderson, one of the Receivers, at the hearing on February 8, 1944, the Receivers, merely advised the court that they had cash funds available for the purpose of carrying out the plan and that in their opinion the investment of the funds for the Seaboard secured creditors would be a reasonable one as they saw the situation. Nor can it be said that the Receivers knew that there was a tentative large balance due to the G. F. & A. under the accounting. Up to that time the only authorized formula for the accounting was the general formula of 1932. It was not until May 15, 1944 that the Florida Court authorized the substitution of the Kennedy formula for the general formula. While the former produces tentatively much better earnings for the G. F. & A. the Receivers had no right to assume in advance of the court order that the change would be made. Certainly they were under no duty to the G.. F. & A. to prepare and submit an accounting statement prepared under a formula which had not been authorized or even requested by the Georgia Receiver of the G. F. & A. No doubt all the parties were aware as a result of the hearings before the special master with respect to the results of different formulae, that many of the railroad divisions, including the G. F. & A. would be better off in their earning statements under the Kennedy formula. But this fact seems quite immaterial in view of the history of the whole matter. Furthermore, as has been related, Messrs. Simpson and Borer, officers of the G. F. & A. Corporation, were equally aware of' the probable much better results respectively under the Kennedy formula, and indeed Mr. Simpson urged this upon the court at the hearing on February 8, 1944, asserting that the credit balance would exceed $3,-000,000, although the precise figures were' not then available. Mr. Nye for the G. F.
Finally, it is contended that the pri- or order of this court for the purchase of the bonds should be modified in favor of the G. F. & A. by reason of what is called the “broad equities” of the case. In this connection it is said that the security holders of the G. F. & A. have received no interest or dividends since 1931; that their railroad property has been operated during the intervening years “under a hard bargain” as a part of the Seaboard System and has produced a substantial amount of gross revenues for it, but no net revenue for the G. F. & A.; that there now is a prospective balance of earnings shortly to be available for the G. F. & A. in the amount of more than $1,000,000; but that it is now proposed by the Seaboard to foreclose the G. F. & A. mortgage under which it holds 90% of the bonds and sell at an upset price at which there can be only one bidder, the Reorganized Seaboard Corporation, and thereby destroy valuable equities of preferred stockholders of the G. F. & A. It is contended that this will be an inequitable and harsh result and that on general principles of equity this court should now in the first instance restrain the Reorganization Committee from such use of the bonds.
The argument would be an appealing one if the assumptions of fact on which it is based were not contradicted by the evidence in the case. The word picture presented by the argument depicts the Seaboard creditors as a powerful and greedy mortgage creditor proposing by oppressive action to destroy valuable subordinate equities in the G. F. & A. But this picture distorts the true features of the case. Let us examine briefly the evidence as to the several assumptions made in this argument.
On this aspect of the case it is quite immaterial to make any distinction between the Seaboard Receivers and the Reorganization Committee; nor is it important in this respect to inquire with nicety just what is the relationship of the Seaboard Receivers to the G. F. & A. The point of the argument is that harsh and oppressive action is contemplated by the Seaboard creditors, as bondholders of the G. F. & A., against the preferred stockholders of the latter. The real parties in interest, therefore, are the Seaboard creditors and the G. F. & A. first preferred stockholders (Simpson and Borer). The question, therefore, becomes whether there is such a relationship between these two parties growing out of the history of the case, that requires or justifies this court in now declaring that the Seaboard creditors, as holders of the G. F. & A. bonds, have only a qualified ownership in the bonds limited to the cost of their purchase, with interest.
The assumptions of fact in the contention are (1) that there is some equity in favor of the G. F. & A. stockholders as against the Seaboard creditors by reason of the default of dividends on the G. F. & A. stock; (2) that a hard bargain was driven against the G. F. & A. in the operating agreements; (3) that the Seaboard creditors are now seeking an unfair profit on the purchase of their bonds, and (4) that there is presently value in the first preferred stock of the G. F. & A.
There is clearly no equity between the Seaboard creditors and the G. F. & A. stockholders by reason of the defaults in dividends to the latter. The default there was attributable to the insolvency of the Seaboard Railway Company and not to its mortgage creditors. The insolvency of the Seaboard Company also caused defaults in payment of interest to its mortgage creditors, which, in the cases of nearly all its mortgages have been continuous since 1930 to this time; and with minor exceptions in the case of a few of the underlying divisional mortgages there will be even under the reorganization plan a substantial los's of principal to many of the Seaboard mortgage creditors. The loss to the G. F. & A. security holders is not proportionately greatly different from that of the Seaboard creditors. Both have been the victims of general economic conditions affecting railroad securities.
The assumption that Seaboard creditors through their representatives, the Receivers, drove a hard bargain with the G. F. & A. after 1934 is seemingly based on the view that at the present time there is a credit balance in the operating accounts in favor of the G. F. & A. but which cannot now be used by it. But as we have seen, this balance is at best only a prospective and not now a certain one. More importantly the test as to whether the bargain was a hard one for the G. F. & A. must be judged by the situation when the bargain was made rather than by the pres
The evidence in the case does not justify the conclusion that the Seaboard creditors bought the G. F. & A. bonds at less than their market value and are now seeking a large and unearned increment in value on the purchase. The sale was freely made after open and fair negotiations between the competent and experienced Bondholders Committee of the G. F. & A. and the Seaboard Committee. The purchase price of $750 per bond was exactly the sum provided for in the modified reorganization plan which was acceptable to the Bondholders Committee if it could be promptly carried out with respect to their holdings. Ninety per cent, of the bondholders freely and apparently entirely willingly accepted this price. The Chairman of the Bondholders Committee, Mr. Nye, stated in open court that his Committee considered it a fair price; and Mr. Wil-hide, a prominent Baltimore banker and member of the Committee, again testified at the recent hearing in this court to the same effect. The record also shows that about the same time or shortly later, Mr. Simpson, the president of the G. F. & A. also bought 5% of the bond issue at a price of about $800 per bond. It is true that the face value of the legal claim of each bond, with accumulated and unpaid interest, now amounts to a little more than $2,000 per bond; but there is no affirmative evidence in the case that these bonds are now presently worth more than approximately the amount of the purchase in February 1944.
A very material assumption of fact in the argument now being considered is that there is presently real value in the first preferred stock of the G. F. & A. I will discuss this only for the bearing that it may have here and now on this particular argument. The special master’s report in the case found there was no value in the G. F. & A. stocks. As a result of the hearing on exceptions to the plan, this court reached the same conclusion. There is no evidence of any change in this situation except from the present tentative operating credit which is potential and not actual, and, according to the evidence, probably only temporary and not permanent. The evidence shows that the G. F. & A. has in normal times little, if any net earning capacity. Its own local traffic gross revenues declined in 1940 to $515,000 from $1,230,392 in 1928. As a minor link in the Seaboard System it has been used principally as a “bridge" route connecting with other Seaboard Lines. That is to say, there is comparatively little traffic originating on the G. F. & A. More than 60% of its earnings in recent years has resulted from foreign traffic solicited by the Seaboard and brought to the G. F. & A. on one of its lines and delivered by the G. F. & A. to another Seaboard line. And the greater volume of this since 1940 has been due to abnormal war conditions. As Receiver Powell testified, the Seaboard can continue to use the G. F. & A. as a part of its System but it is not regarded as of large value. Another important factor in any appraisal of the present value of the G. F. & A. is the undisputed fact that for its continued operation it requires physical betterments to be made as soon as possible at a cost of at least $1,300,000. Messrs. Simpson and Borer bought $1,000,000 par value of its first preferred stock in 1943 for $5,000. Under these conditions it is difficult to find any substantial value in the preferred stock of the G. F. & A.
The final assumption of the argument is that the Seaboard creditors are planning oppressive legal action against the G. F. & A. I do not think the facts warrant this view. It is not even suggested that the G. F. & A. bonds were not legally enforce
Since the hearing in this case, the Circuit Court of Appeals for the Fifth Circuit, has decided the Seaboard-All Florida Lines Case (Godfrey v. Powell & Anderson, Receivers of Seaboard), 150 F.2d 486. One of the questions decided in that case has a close similarity to the instant one. Prior to the Seaboard receivership in December 1930, the Seaboard Air Line Railway Company was the lessee of the All Florida Lines. The Seaboard Receivers disaffirmed the lease but continued operating the property under operating orders which provided in substance that the Receivers were not to be liable to pay over net earnings, if any, and the All Florida Lines should not be liable for deficits, if any, unless the operating orders were modified by the court. In 1942 to simplify and expedite reorganization of the Seaboard and to preserve the unity of the Seaboard System, Judge Way authorized the Receivers to purchase at $160 per $1,000 bond, all the bonds that might be offered for sale at that price, which at the time, was a fair price. Pursuant thereto the Receivers did purchase $24,543,000 par value of the issue of $33,505,000 of bonds. The funds used for the purchase were those in possession of the Receivers resulting from the general operation of the Seaboard System and were then subject to the lien of Receivers certificates and the impounding orders in favor of Seaboard mortgage creditors.
The special master’s reorganization report in the Seaboard case in this court made no allocation of new securities to the All Florida Lines, noting that it was proposed to acquire them in the reorganization through foreclosure of the mortgage. In the mortgage foreclosure proceedings of the All Florida Lines in the Florida Court, and in the ancillary receivership proceedings in that court, other bondholders contended that the bonds held by the Receivers should be subordinated to their claims or at least limited in participation to the amount paid for them, basing their contention on the so-called “instrumentality” rule. They had filed motions for both the retrospective and prospective modification of the operating orders, contending that although there had been deficits in operation in prior years the increased earnings during recent war years, had overcome the deficits and showed a substantial surplus of earnings and that therefore the purchase of the bonds by the Receivers should be considered as really having been made from moneys derived from the operation of the All Florida Lines. District Judge Aker-man denied a retrospective modification of the operating orders and in the mortgage foreclosure case held that the Receivers bonds were entitled to participate in distribution at the mortgage foreclosure sale, which had been made to the newly created reorganized Seaboard Railway Company at the established upset price, for their full face value and were not limited to the amount for which they were purchased.
“The principle invoked is not applicable, for the bonds were not bought with All Florida funds nor with funds belonging to Seaboard, nor under its control. They were bought with funds of security-holders of Seaboard under orders directly authorizing the purchase and with results contemplated and provided for in the orders. No applicable, legal, or equitable principle called to our attention or known to us supports the theory of appellants that in some way an injury has been done to the holders of bonds, who were unwilling to sell, by the purchase of bonds from others, who were willing to sell. The record contains no evidence which, if the theory were sound in law, would support it in fact. The funds which were used to purchase the bonds were funds belonging to creditors of Seaboard, they were not Seaboard funds, nor were they funds in which All Florida bondholders had any interest. * * * Appellants’ claim that their bonds should be in effect paid in full would, if allowed, have the result of unjustly enriching the holders of the bonds who declined to sell at the expense of persons who bought from those who were willing to sell, expecting to succeed to their places.”
In the orderly and harmonious functioning of the federal judicial system cases sometimes arise in which careful consideration must be given to avoid conflicts of jurisdiction between courts of equal dignity but different territorial jurisdiction. This is such a case. The title to the G. F. & A. bonds is being tried in this court as the jurisdiction over them is here. This has been carefully recognized by the Georgia Court. And it is appropriate for this court now to expressly recognize, as it does, that the Georgia Court has the full jurisdiction of the subject matter of the reorganization of the G. F. & A. under section 77 of the Bankruptcy Act, including therein, of course, any and all questions that may arise affecting the proper treatment of the G. F. & A. bonds, in accordance with the provisions of the Act.
I conclude that the title to these Georgia, Florida & Alabama Bonds is vested in the Seaboard Reorganization Committee free of any equity, claim or lien thereon in favor of the trustees of the Georgia, Florida & Alabama, and have signed an order to that effect.