The San Francisco call., 1896-08-06
Arguments on Appeal Are Being
Heard in the Supreme
Court.
LEGAL ASPECTS OF THE SUIT.
Force of an Agreement to Vote in a
Certain Way Seems to Be
the Main Issue.

No less than seven justices and rather
less than seventy times seven attorneys
were present ct yesterdays proceedings in
the double appeal of A. W. Foster and
others against Sidney V. Smith and
others, and Sidney V. Smith and others
against the San Francisco and North Paci-
fc Railway Company. Mr.. Foster was
represented by Attorneys w. S. Goodtel-
low and Jesse w. Lilien thai. who, in con-
n ction with Garret W. McEnerney, also
defended the railway company, Mr..
Smiths advocates being Messrs. Page, Nc
Cutcheon and Eels.
The original action, from which the SUBJ
sequent complications took their rise, was
a suit which Mr. Foster and others brought
before Judge Angelotti of Marin County to
enjoin Mr. Smith from voting his own
stock in the railway as he pleased. This
action was based upon the theory that he
had bound himself by an agreement, ac-
coIding to the terms OF which his stock
and the stock of Me ssrs. Foster and Mark
ham should be voted as unit during five
wears. The stock held by Messrs. Smith.
Markham and Foster amounted to $4,000
shares, whereof Mr.. Smith owned 12,O0O
Judge Angelotti refused TO grant any in
junction and held the agreement void as
against public policy.
The annual election of directors of the
railway company came on shortly alter
the rendering of Judge Angelotu's de-
cision and the plaintiffs in that case, DIS
regarding the decision, voted the stock as
they claimed it ought to be voted-in
other words, Mr.. Smiths stock at that
election was voted against himself.
The Smith party forthwith commenced
a summary proceeding to have the cleo
ton set aside under the provision of that
section of the Civil Code which, they con-
teded, applied to the case. This proceed
ing came up before Judge Seawell of the
Superior Court of the City and County of
San Francisco. Judge Seawel, after hear
ing both sides ably presented. rendered a
decision to the effect that the election was
invalid whether the agreement was void
or not, holding with Judge Angelotti that
it did not constitute proxy.
The statute in reference to proxies re-
quires that at corporate elections the
stock shall be voted either in person or by
proxy; and since the agreement. IN the
conception of Judges Angelotti and Sea-
well, whether valid or not did not consti-
tute proxy the last-named Judge held
that Mr.. Smiths votes ought to have
been counted for himself, and that the
election was therefore invalid in law and
fact
Judge Seawelps decision was not COM
piled with. The parties disregarding it
were cited to appear in answer to charges
of contempt of court, and were convicted,
being sentenced to pay nominal fines.
Thereupon the cases we're brought before
the Supreme Court on appeal from the
decisions of Judges Angelotti and Seawell.
Yesterdays entire session was taken up
by the arguments, Mr.. Lilienthal speak-
ing in favor of the agreem ment as binding
and Mr.. Page, while not attacking its
validity in specific terms, holding that
compliance with its terms could not be
enforced by the courts. Mr.. Goodfel!ow
made spirited argument in reply, and
all three attorneys cited cases without
mum Der and rehashed the arguments pre-
sented in the Superior Courts to their
hearts content.
The case will proceed to-day, and will
probably develop some interesting legal
points, as the decision will indirectly
affect all agreements inI:which voting
stock by proxy in certain combinations
may be one of the stipulations.