The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1870-11-19
Consolidation.
OminiOn of Judge BarrOWs
ON the Motion for an
Injunction.

Injunction.
Prayer ss the Petitioners Denied.
Cummings G ais. in Equity vs. Maine Cen
trat Railroad Company &c ais.
BARRows j. - The question Is,
whether a. this stage of tlte proceed.
ings, before the coming IN OF
the answer and the taking of the testimony
which is finally to be used in the cause
enough has been shown at THIS hear'ns,
upon notice given, to authorize ana require
the intervention of the Court with an III
junction. o,.
The complaint comes from certain STOCK,
holders In the defendant corporation, ana
| /. based upon certain contracts uated May
10 1870. for the leasing to the Maine Cen
trail Railroad Company by the Portland q
Kenpebec Railroad Company Gifts railroad,
depots. franchise. rolling stock and prop
ertv of every description, for the term OF
900 years, and the assignment of the lease
held by the Portland & Kennebec Railroad
Company of the Somerset & Ker nebec
Railroad Company. for like term. These
contracts provide. among numerous other
stipulations relative to the use and manage
ment of the properly leased, and the way
and manner in which the debts and in
cumbrances are to be provided for and the
earnings of both roads shall be appropri-
ated under the charge of the Maine Central,
| for the location and building by the Maine
| Central Railroad Company of railroad,
| under this charter as now extended. from
some point on their line in Danville to
| point of junction with the Portland q Ken
| nebec railroad, and for a change of the
gauge of their track and rolling stock to
| conform with that now in use by the latte.
road.
The complainants alege that these con-
tracts are in fraud of the general right Of
| the stockholders in law and equity, and In
| violation of chapter 81, page 81 OF the Re
| vised Statutes of 1857, and they pray that
all the defendants may be enjoined against
making any change in the gauge or width
| of the Maine Central railroad or its rolling
| stock, and against the construction OF any
new line of railroad from Danville junction
| to the Portland and Kennebec railroad,
and against the doing of any other act or
| thing under the contracts aforesaid.
To justify me in interfering in the sum-
| mary manner proposed, in the manage
| ment of the affairs of this corporation, the
illegality of the proposed acts ard conse-
l auent serious injury to the complainants
power of the Court TO issue injunctions Is
to be exercised with the utmost caution.
(Morn .. Machids Water POacer and Mill
Company AZ Maine 1919 The careless and
| hasty exercise of it IN cases when doubt as
to the legal rights Of the parties may exist
mi lit be productive of misctiefs greater
than those it is designed to prevent. Es-
pecially when it is invoked to restrain the
doines of corporations in the management
of their affairs, at the instance of members
of The corporation who appear to constitute
but small minority OF such members,
both in numbers and interest, as against
| thnco how thp ior norton i'm interest
the disproporiiOn being very great
should this cauticn be needed and the
presumption that all things were rightly
done and without fraud mu-t be clearly
overcome. 1t must also appear that the
party complaining has been gully Of no
laches in relation to the matters OF which
they complain. If for want of due heed
and diligence on their part, affairs have
been allowed to proceed until contracts
have been perfected an1 obligations enter
ed into, the interruption of which must
result in loss to some one, such loss must
| be borne By those whose neglect has suf-
fered it to be incurred.
proceed to the discussion of the vari-
GUS matters to which the prayer tor III
junction extends, and the reasons upon
| which that prayer is grounded as present
ed by the evidence offered at this hearing.
1t is claimed on the part of the petition
ers, that all the acts and doings of the
Maine Central Railroad Company since
May 81, including the attempted change OF
gauge and the location Of the new line of
railroad from Danville to connect with the
Portland & Kennebec railroad are void
| and of no effecr, because Il majority of the
| directors legally elected have not acted as
| sucn since that date, nor by any act or
| vote approved of the -doings of Messrs.
| Rice, Brown, Coburn. Dunn, Lockwood
| and Patten, claiming to ACT as directors,
by whom the arrangements tor the change
| Of gauge and the location Of the new line
have been entered into. 1t appears that
| these persons were elected at an adjourn-
| ment of the special meeting held May 81,
1870, to fill vacancies created by the resis-
| nation of the previous board rendered and
accepted at that meeting. The Sd article
| in the notice winch was duly given OF
| that meeting, runs as follows: "Third,
| 10 fill any vacancies that may at the time
| of meeting exist in the Board of Direc-
tors" The stockholders cannot justly
| complain of want of notice that the cleo
| ton of directors was a subject to be acted
on at that meeting; but the objection
urged is. that the bylaws of the corpora
ton do not provide for any election to fill
| vacancies in the board Of directors, except
| at a special meeting of the stockholders to
| be called forfhat purpose if the remaining
directors shall so deermine; and that it is
thereby implied that such meeting can
only be called when vacancies actually ex-
list. Where an election of directors has.|
been held at which the stock of the COM
pany was largely represented at a meeting
held in pursuance of a notice emanating
from full board of directors, for the pur-
pose of filing vacancies anticipated when
the notice was issued. and actually exist
In bo nf ha pa.f oh
be slow to hold. in the absence of fraud
and foul practice against the stockholders,
of which l find no evidence here, that
such election was illegal, simply because
the letter of the bylaw Omits to provide
for such vacancies. The obvious intent of
the article was 10 provide for the filling of
vacancies in the board of directors at
special meetings notified for the purpose
by directors competent to act. l fail to
see how any rights of the stockholders
could be injuriously affected because the
notice came from the full board in antc-
patton of the vacancies instead of from
the remaining members after the vacan.
cies had arisen.
Moreover, these things were not done in
corner. Great publicity attended these
transactions throughout. These com
planants must lave known of this cleo
lion, aud been perfectly aware that the
persons chosen at the meeting of May 31st
were actually exercising the functions of
directors of this road. A very considera-
BILE portion of the acts and doings, which
are the subject of complaint here were
performed by the previous board, of the |
legality of whose election no doubts are
raised. They became matter of record. |
even before the meeting of the 31st OF |
May, and were the initiatOrV stems
of that arrangement between the railroads |
: which the present board have since been |
engaged in carrying out. But weeks |
elapsed before the contracts were made |
for the execution of these projects, daring |
which time these cOmplainants took no |
steps to test the legality OF the election of |
this board of directors. They come now,
after The lapse of some five months since
the occurrence of said election, and after
heavy contracts have been made and large |
expense incurred in forwarding these pro-
Jets, and when but a short space of time
lntervenes before the annual election, and
deny the power of these directors on the
ground of informality in the notice for the
meeting at which they were elected. j
am satisfied that in this state of things |
this objection is not open to them-that if
there was anything in il that might have
availed in the outset it should have been
asserted earlier, and that no such reason
ought now TO be regarded as valid
ground for annuling these contracts or
preventing their execution.
This objection of the lsches of the plain
I'M. I'm applies in its full force 10 the prayer
~, n''unction against the change of