The New York herald., 1870-01-02

s9Ssi ~ a. x 4 5sss ssa wss :sss
tioa for minority Of the stockholders or said cor
James Fisk. Jr. Jay Gould and others acsna
| lii concert with them, and IN fraud Of the Just
Ss o. ,,o N st ssS aSauf eeay majority a
asas ss sas NJ
| rls testified that he retained by Mr.. Gould as
s soSs e s 1 cssSs ~ ~
| directors IN the railroad company at the coming
elccuon 70 be held in September, and these eforts
continued up to the Ith Of August, the day for the
| close OF the transfer books,
THIS proceeding was entirely legitimate proper
mons that majority OF the stockholders ininterest
shall control In the election OF It's oicers and
Besides these efforts In the purchase OF stock to
get the control OF the road the ensuing election
proof was given at the trial TO show that resort was
haq 70 various judicial proceedings with the prccon-
certed design and intent TO prevent honest ana
Iair election by excluding votes that could be
controlled Dy The FisE and Gould interest, and to
hinder and prevent q free and true expression OF
the wishes the other stockholders at such elec-
troll OF the SAID road.
i appears that up to tue time Of the commence
ment OF TINS action twenty-five different suits had
ties Interested In this controversy. With those suits
and proceedings have nothing to do In this con-
designed 10 aIect influence control the election
held on the l7th OF September.
After recounting the various judicial proceedings,
suits, injunctions. &C., IN the case, Judge Smith
concludes as follows:-
Upon the whole evidence upon this branch OF the
case think am bound to ind matter OF fact
that there was precOncelvcd scheme combination
pointed to oe held a. the me and place Aforesaid.
Dy the use and abuse OF legal process and proceed
ings ana BY Efforts and contrivances TO prevent
lrfnVQt
ing. made necessary BY the Injunction against the
inspectors elected IN 1858, procured, used served
OF the room where such meeting was TO be held.
with such number Of persons utterly precluded
free and fair meeting Tor such purpose.
And am accordingly bound to ina as matter OF
fact and OF law That the election held by Hamilton
naills Joseph BUSH anu James Oliver acting aS IN
spectors. was therefore irregular, fraudulent and
void
There IS still anotherssubect for consideration In
respect to this election. 1t was held distinct viO-
ation and disregard OF two lnjunct0ns OF
tins court and duly served upon the said inspectors
One injunction was ISSUED in the suit David
beck and others against Jay Gould ana James Fisk.
Jr and Others.
This injunction required the defendants, Hand
Latnrop ana Haskell, inspectors OF elections Their
successors substitutes and all aud every other per-
son VINO might IN any way he appointed or selected
to serve as inspectors OF elections or to hold any
elecClon for directors OF the Albany and Susque-
hd0na Railroad Company, absolutely to desst aud
refrain, until the further order OF the cOnrt at any
election on the 7th day OF september 1859, any
subsequent day. whenever the pIalutilr and the
be enjOlned, they be forbidden to vote upon the
same BY any Injunction, or order, Judgment, or
10 receive any vote or votes on the part Of the
defendants, Jay Gould, James Fisk, Jr., Charles
David Wilbur, Al0Dzo Evarts. Jonathan Herrick,
Joseph Busn Hamilton Harris and James Oliver In
person or br proxy. or as the proxy or substitute
any wise 0f any other person, unless the plaintiff
other holders OF SAID 1000 shares OF stock. and OF
every portion thereof, should nrst have an oppor-
tualty to vote upon all Of the SAID shares by them
held respectively. Thls injunction served upon
Mr.. Harris and his associate inspectors before they
had received any vote, ana was Immediately disre-
0ardcJ and disoDeyed letter and intent BY them
~ receiving the vote OF w. A. j. Fuller, who voted
as receiver OF the very stock upon whic the plain
TN IN SAID action was restrained from voting
The other injunction was granted In u suit IN
which Minard Harder was paintir. wherein and
deslst and refrain from holding any election OF
| directors or from receiving and counting and
| as The one directed to Hand, Haskell ana Latnrop
| apd the one forDiddln9 Joseph IL. Ramsey from
think, were enlrcly void. do not think court OF
| equity has any power to restrain public olficer
Or al oilicer duly elected or appointed By corpora
| tion from performing the general, ordinary and
proper duties OF such ONCE. IL may restrain him
! IRON doing some particular wrong injury AFFECT
ing private rights, and 1t may suspend or remove
director or trustee OF private corporation upon
Que cause being shown and due notice given for
but II cannot remove him by INJUNCTION without
| notice and without nearing.
One was, think. valid injunction, and as such
1t was the duty OF the inspectors to wnom 1t was
addressed to obey 1t. Tne writ OF Injunction Is
doubtless liable 70 abuse, and is unquestionaby
often granted lncautiOuSy, but while court with
equity powers exists IN this State the OF IN
junction s an invaluable and Indispensable instru-
mentn iGs hands 70 enable II to discharge proper
duties and to prevent wrong aud INJUSTICE, and 1t
must be maintained In its Integrlty aud obedience
to 1t required aud enforced.
In the People VS.. DAVIS, Selden 262 Judge JOhD-
son, IN giving the opinion OF the Court OF Appeals
said that the principle Is OF universal force tnat the
order or Judgment OF q court having jurisdiction is
to be obeyed, no matter how clearly may De erro-
neous. IL " only when 1t acts without authority
that It's orders are regarded nullitles they are
then not v0Gablc but SIMPLY void.
This election would doubtless have been set aside
on summary pp.loation to this court-pursuant
70 section s, OF title OF chapter OF the revised
statutes-on the ground that 1t was held Ia dlstnct
violation OF this Injunction and think In this pro-
ceeding where the regularity OF the election Is In
question, the fact That said election was held Ill
violation Of injunction must De considered.
the concnsion that me eecon o ha oo Gone 70
Church set OF directors was and is not legal ana
valid, IL follows that the priority OF right depending
upon the prior organization OF the stocKholders'
meeting over which Walter $. Church presided, -
removed, and such meeting Is to be re-
% seid the consequences Of Of when. a upon 'ese the
views above stated Is tat the stockholders' meeting
over winch James Hendricks presided was the ONLY
regular legal and valid stockholders meeting held
on tAe SAID 7th OF September aud tat the inspectors
elected at that meeting were lawful Inspectors, and
the election ned by them for directors OF said c0rpo
ration legal and valid election.
The argument that Harris Rush and Oliver were
=
valid upon that ground, untenable. There can be
no sucn olcer as an officer de Jacfo, against
peope, IN an acton at The suit OF the pc spe to try
Inc ute TO the Office The doctrine IN respect TO
onicer oe f1co only applies to favor OF third
persons and to protect IDnocent parties who have
trusted 10 the apparent title OF an officer y n
IL appears that al the Harris poll there were cast
Is, 400 votes, ana at the snow polls TO- 742 Transfer
the 80 0O shares Improperly voted upon by Fuller
from the Harris to the swan poil and it would give
the majority to the latter poll From the Harris vote
800 should also be deducted, because the vote was
hpAn
removed from Oflce and their places filled by new
officers The ce,ttOfaft brought to review the pro.
ceedlngs did not return the old Ocers and they mad
no right to cast the vote OF the town. These Harris
shares should also be declared for the town OF
Duanesburg on the ground Ghat thus court ut the
General Term had adJudged that said town
does not own any stock In said railroad
corporation, and was not a stOcKholder. Without
going 1urther into detail on this question | Will
SIMPLY add that the subscription for the 500 shares
by Hendrick, Hunt and others, ihlnk, made them
lawful stockholders upon such stock or the said
curpQrAtlQn. They pald The len cent II