The Montgomery advertiser., 1903-04-07

This doctrine has over and again been announced by the Supreme Court and in no case more emphaticaliy than in Min nesota VI. Northern Securities Company. But complainants say that the Union Pacific Is constructveIy before the court, being represented by the Southern Pa cihc Company. T This contention Is placed on two dis- tinct grounds: First. that there is such an identity of interest between the two corporations that the defendant should be regarded as representing and defend- ing for the Union Pacific Company: sec ond, that the Southern Pacific is in law the representative of each of its stock holders in respect to all. corporation mat ter.
 These in their order: The identity of interest relied upon to obvtate the ne- cessity of suing the Union Pacific, con- sists in the circumstances stated show ing the control exercised by the one com pany in the management of the other. but 1t must not be overlooked that the managing agencies which have spoken through the answer of the Southern Pa cifc deny that they are or have been disloyal to their trust as officers and d. rectors of the Southern Pacific and deny that in their character as officers of the Southern Pacific they stand for and rep resent In8 0tuSE CVkAnR6hys ss~S ~~--s that the two roads were In any sense competitive or that there is the slightest repuRnancy in their action as directors
 An Inconsistsnt Attitude.
 To assume that there is such identity of interest as to dispense with the neces- sity of bringing the Union Pacinc Kali road Company before the court would be to first decide all the issues of fact ana law involved and. then say: These be- ing the facts, and this the law. 1t Is plain that there is such oneness of interest between these companies that the rights of the Union Pacific Railroad Company can be adjudicated without its actual presence, because 1t is represented by the defendant which is sued.
 Aside from this inconsistent attitude we cannot ignore the fact that while there may be an identity of interest in some particulars. the question of the right of the Unin Pacific Railroad to hold and vote the shares owned by it is q ques- tion which deeply affects its property rights and in such respect of which the Southern Pacific. Company as such has no interest whatever. These are the two wholly distinct corporations. having each it's own properties and it's own body of stockholders. and neither has any legal Tlxub tO StduQ UT Eopxoecut tnc othpf c&- cept as it may be duly constituted the agent of the other
 The second ground for maintaining that the Union Pacific Railroad is party by representation is based upon the very obvious rule that the corporation represents it's shareholders in the defense of all suits which involve corporate rights or functions. what right has the South ern Pacific Company to conclude or ef- feet the right of any shareholder in re- spect of the ownership or incidents of his particular shares7 Of what interest is it to the corporation as an entirety or as a body of stockholders whether par ticular shares are owned or oted by A, rather than E. or whether 1t Is c that Is capable of holding or voting shares at ali7
 Corporation Not Concern.
 It Is question which may indirectly affect other shareholders but 1t Is clearly hot question which concerns the cor poratioh as such or any of its functions. But 1t has been urged that the idea of a corporation, as legal entirety separate and apart from the body of persons com posing its shareholders. is a fiction which should be ignored whenever used for the purposes not within the intent of the de- vice and that in case like this against the corporation should be regarded as q suit against every corporation and there fore a suit to which the Union Pacific Railroad Company is party by repre- sentation.
 If the issue made with the Union Pa- ciic Railroad Company in its character as a etockholder of the Southern Pacific was one which was common to all the stockholders there would be some room for regarding the litigation as involving a corporate matter. interest or function. IA a~ NAt. A<An4 NHAk apply to the stockholders as a body. It's solution depends absolutely upon a state of facts peculiar to the particular stock holder and its decision win affect directly the property rights of that owner alone, and does not directly concern any other stockholder as such.
 Judgment or decree against cor poration in respect to corporate matters necessarily binds it's members In the ab- sence of fraud. because as stated by Ful- Ter, Chief Justice. in Hawkins vs. Glenn, This Is involved in the contract created in becoming q stockholder.
 No such reason exists when the 5udg- ment or decree against the corporation does not involve some corporate duty' oD- lixation or function put affects also the contract rights of 6 particular stocknoio- CT as a~ainst the other members Of the corporation.
 The suggestion has been made that the afidsvits and exhibits show, that the .harea 90 owned by the Union Pacihc RaIIroad Company stands in the name or n IT Hartman and that he has made an afidayit which has been filed in the case. he has thereby made an appearance in the case in his representative capacity as trustee for the Union Pacific Company and that having, as a party. the trustee, in whose name such shares stand. tne court has obtained jurisdiction 10 enloih the trustee from voting on same even as his appearance is not to be regarded as the appearance of the Union Pacinc for all purposes relating to said shares.
 The Premise Unsound.
 The premise is absolutely unsound has filed an affidavit appar- entiy and only presumably at the in- stance of the Southern Pacific, which is a narty, and 1t cannot be that without being bound as a party, as a mere wit ness. who is called upon to testify be- comes thereby a party. even though his evidence may operate indirectly to his own advantage personally as a trustee for others.
 Knowledge of the pendency of suit Is not equrvalent to legal notice. but mere appearance of one as a witness in behalf of one who is an actual party is not an appearance as a party and has never been SO held.
 With some reluctnce reach the con clusion that any order or decree affect | Ing the right of he Union Pacific to l .o1rtrn hold or vote the stock Of the |