The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-12-22
THE MOTION IS DENIED
Judge Clancy's Ruling in the B.
& M. Case Affirmed.
IN A PER CURTAIN OPINION
Contentious In the Brief Discussed at
Length-The Supreme Court Re-
fuses to Change Views Pre-
viously Expressed.

Helena. Dec. 2l.-The supreme court
to-day denied the motion OF the attor-
neys for the Boston & Montana COR a
rehear.ng of the case of James Forres-
| ter and John MacGinniss VS.. the Ros-
ton a Montana Consolidated Copper
and Silver Mining copany ct al. recent
ly decided in which this court affirmed
the ruling OF Judge Clancy In granting
plaintiffs an injunction to restrain the
Montana corporation from transferring
! its property To the New York corpora
! tion. Directly after the supreme court
handed down its decision, which was
in effect that a prosperous going cor
poation cannot transfer the citzens nship
/ OF the corporation to another state
1 without the consent OF each and every
! stockholder. the attorneys for the lsos-
I ton a Montana moved for a rehearing.
/ The court received briefs pro and con
the motion Monday and to-day an
/ nounced their decision as stated in the
/ form Of a per curiam opinion by tie
| whole court. IL Is usually not CUSTOM
airy for the court to prepare a written
| opinion In passing upon a motion for
/ "A rehearing. but on account of the Inn
! portance of this ease the court used II
pages Of typewriter manuscript. tell
ing why the motion could not be enter
/ ta.ned.
Some Of the contentious raised i'm the
briefs are discussed at length while
| others are dismissed by referring To the
| previous opinion. one contention rails
| ed again by the Boston x Montana at
| torneys was that Forester and Mac
Ginn.ss had no standing I'm court i'm an
/ equity proceeding. because the shares
| OF stock I'm the Boston a. Montana mine
I were NOT held Inv Ihana .t
/ the time the acts complained
OF were committed. that is
] the transfer. The court reiterates what
IL said in the previous opinion In that
respect and holds the contention un-
| tenable because Forester and MacGin-
/ Miss were the owners at the time they
applied for the injunction. The state
I ment of facts preceding the opinion DIS
closes that the shares were never voted
| in favor of the transfer" says the
! court. "and that the former owners In
no wise assented thereto: hence The
J stock reached the respondents free from
/ any such burden or taint In respect to
the proceedings taken by the directors
as perhaps might have followed upon
| consent on acquiescence In the transfer
| by the former owners"
Another contention OF the Boston a
Montana attorneys was that the stock
/ was purchased for the purpose OF bring
I ~
/ corporation and that the court below
/ did not make "A finding To the contrary.
I Replying to this. the court quotes from
| the other opinion to the effect that the
| lower court ruled correctly in holding
! that they acted in good faith and re-
/ afiirms that doctrine. remarking: I'VE
/ again refrain from intimating any opin-
! ion az to whether a purchase OF stock
/ with the intention OF suing In the in
/ terest or rival corporation" says the
| court and not for the benefit of non
asserting shareholders only. would en-
title plaintiff to relief. The facts dis
| closed do not demand the expression of
an opinion upon that question"
The court declines to change the
views previously announced as to the
transfer being other than a sale. IL
also reaffirms what IL said about GER
tain portions OF the compiled statutes
| constituting an enabling act and per-
mitting two-thirds Of the shares To ef-
feet a disposal OF the property OF a
prosperous and solvent corporation re-
gardless of the dissent OF other stock
holders. The court declines To consider
still another point raised. that the code
prohibits an attorney and counsellor
from being interested directly or ind-
rectly, buy or be in any manner in
terested I'm buying a bond. promissory
note. bill OF exchange. book debt. or
anything In action with the intention
and for the purpose OF bringing an ac-
tion thereon" other than To say that
that point could hardly be ccnsid cred
now since IL was not raised when the
case was submitted. However the
court holds that IL is manifestIy with
out application. although the Boston *
Montana attorneys claimed IL applied
To Forester. The court i'm conclusion.
denies that the decision I'm chief "con-
hicts with the whole weight OF authDri-
~ Of the best considered American
causes" and winds up the opinion by
declaring.
The foregoing disposes OF every
point made by appellants which Is
worthy Of comment. After full discus
sion. participated I'm by all the justicea
we are. upon mature reflection and de-
Liberation. satisfied that the better -ca-
sons. as well as the established prlnci-
Piles OF law, sustain the decision here
tofore rendered: and such is the un1n-
imous opinion Of the court. The motion
for rehearing II denied
Besides denying "A rehearing In the For
rester and MacGinniss vs.. Boston * Mon
tana Injunction case to-day. the supreme
court denied the motion 10 have the case
OF Esther Lake. vs.. John Lake, appealed
from Silver Bow. placed on the short
cause calendar. The court then adjourned
until Jan. ;. when the new chief justice
will take his seat As New Year falls upon
Sunday. and under such circumstances
the codes provide that the following day
win be observed as a holiday. the new
year will not begin officially until Jan. ,.
at which time Judge Brantly Will he
sworn In. This rule will not apply to the
legislature. as the constitution expressly
provides that the legislature must meet
on the first Monday In January. without
making any provisions for holidays.
Chief Justice Pemberton left tonight
for 81. Paul. where he was called by the
Illness OF Mrs. Pemberton. He viii. IL
possible. b. here when the court meets