123 N.Y.S. 125 | N.Y. App. Div. | 1910
This controversy involves the right of the plaintiff to recover against the defendant a penalty under section 56 of the Public Service Commissions Law (Láws of 1907, chap. 429). ' By that section any common carrier subjects itself to a penalty not to exceed the sum of $5,000 for a violation of any of the requirements of the Public Service Commissions Law.
Defendant is charged with the violation of the provisions of section 55 of that law.' That section, so far as material to this controversy, reads as follows: “ A common carriel’, railroad corporation or street railroad corporation, organized or existing or hereafter incorporated under or by virtue of. the laws of the State of New York, may issue stocks, bonds, notes or other evidence of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, the construction, completion, extension or' improvement of its facilities, or for the improvement or maintenance of its service or for the discharge or lawful refunding, of its obligations,' provided and not otherwise that there shall have been secured from the proper commission an order a'uthorizingsuch issue, and the amount thereof, and stating that in the opinion of the commission the use of the capital to be secured by the issue of such stock, bonds, notes or other evidence of indebtedness is reasonably required for the said purposes of the corporation * •* *.”
In 1907'the defendant, with its allied companies, required for its .'service rolling, stock of the value of "about $30,000,000. This sum it was desired to pay in installments, running over a period of fib teen years-.. To issue bonds or notes would confessedly have required the consent of the Public Service Commission under the provision of law above quoted.' The money, however, was raised in a different way. An agreement was entered into between four-persons, who were the vice-presidents of five.railway companies, calling themselves in combination “ The New York Central Lines,” as parties of the first part, the Guaranty Trust Company of New York, called the trustee, as party of the second; part, and the said five railway companies as parties of the third part. The agreement recited that these railroad companies desired equipment additions and deemed it expedient to make provision therefor through the medium of an
• These trust certificates to the- extent of ninety per cent of the purchase price of this equipment, and not exceeding in the aggregate $30,000,000,- were delivered to the vendors by the Guaranty Trust Company, and by them placed upon the market and sold to the public, and the proceeds used in payment of the- -purchase price of this equipment, the title to which had been given by the said vendors to the Guaranty Trust Company.
The contention of the defendant is that no bonds, notes or other evidences of indebtedness within the terms of section 55 of the Public' Service Commissions Law have been issued by the companies, but simply a contract of lease, and that the trust certificates were not the obligations of the companies, but were the obligations of the Guaranty Trust Company, the issuance of which required no permission from the Public Service Commission. I agree that -the words “.other evidence of indebtedness,” as-stated "in the statute, refer to obligations of like character with, stock, bonds and notes, and that a lease as such is not included therein. But these trust certificates are in their nature securities of like nature to stock, bonds and notes, and if under the agreements they are to be deemed the obligations of these railroad companies, their issuance without the permission, of the Public Service Commission is in vio-, lation of law, and subjects the defendant and the other- railroad companies to the penalty prescribed in section 56 of said law. In the trust' certificates themselves it is provided that neither the certificate nor dividend warrants pertaining thereto should be deemed in anywise the -obligation or promise to pay of the trustee. No party is liable to pay those certificates except the railroad companies-themselves. They have not' promised to pay directly, but through the medium of the trustee, to which they pay the amounts due thereupon under the name of rentals, under-a covenant that the trustee shall pay the same to the holders of these certificates. It would séem clear, therefore, that these trust certificates were the obligations of these companies and their obligations alone. If in case of default the trustee failed under the conditions of this agree-
It is of small assistance to refer to authorities in the determination of this issue. , Other cases arising under other statutes differ so materially in the questions presented as to throw little light upon the controversy here. The object of this statute seems to be to protect the public and, perhaps, the stockholders of the corporations from the flotation of securities which are bought and sold in the open market which represent useless and unnecessary expenditure.' The purchasers of these trust certificates are in need of the protection of the statute in the samé degree as would be the purchasers of bonds and notes of the corporation. They have no more additional security than they would have in the purchase of such bonds and notes, and in the ultimate analysis they; have exactly the same obligation to be paid through a trustee instead of directly by the railroad companies.
As this controversy is submitted for the purpose of obtaining a construction of this law, the plaintiff’s counsel asks only for a nominal penalty. I advise judgment against this defendant for the sum of $100, with costs. '
All concurred.
Judgment ordered against defendant for Sum of $100, with costs;