Alleghany Corp. v. James Foundation of New York, Inc. ( 1954 )

FRANK, Circuit Judge.

As the facts are fully stated in the opinion and findings of the district judge, reported in 115 F.Supp. 282, we shall not repeat them.

We shall assume, arguendo, that the James Foundation had conferred upon W & P authority to make a contract for the sale of the stock constituting control of the Western Pacific Railroad Company, and also authority to delegate that authority to S & Co. and Baird; that W & P did thus delegate that authority ; that accordingly, on either February 5 or 8, 1951, a contract for the purchase and sale of the stock was made which bound both Alleghany and the James Foundation; and that that contract did not run afoul of the Statute of Frauds. Nevertheless, we affirm for the following reasons:

The agreement between the James Foundation and W & P provided that, if any contract of sale were made, then delivery of the stock by the James Foundation and payment by the purchaser were to occur on the third business day after the date of such contract. If a contract was made on either February 5 or February 8, then it was necessary that Alleghany be able to pay the purchase price, and for the James Foundation to deliver the stock, on either February 8 or February 11. For, considering the circumstances and the character of the agreement between the James Foundation and W & P, time was plainly of the essence.

Alleghany then had control of the Chesapeake & Ohio Railroad. Under 49 U.S.C.A. § 5, the Chesapeake & Ohio is a common carrier as are Western Pacific and Allegheny (because of the latter’s control of Chesapeake & Ohio). 49 U.S.C.A. § 5(4) provides that “It shall be unlawful for any person,” without the approval of the Interstate Commerce Commission, “to enter into any transaction” by which a carrier will “acquire control of another carrier,” or “to accomplish or effectuate, or to participate in accomplishing or effectuatlng” the control or management in a common interest of any two or more carriers. * * * ” It is highly improbable that, in the brief period available,¹ Alleghany could have procured the approval of the Interstate Commerce Commission of the acquisition of the controlling interest in Western Pacific.²

Alleghany had the burden of proving that it could have done so. This burden Alleghany did not discharge. Indeed, it never took any steps to submit the matter to the Commission.³

It follows that (ignoring for the moment the Commission’s decision in Chesapeake & O. Ry. Co. Purchase, 261 ICC 239) Alleghany could not lawfully have become owner of the stock within the required period and therefore would have been unable to perform the contract with the James Foundation. For, although Alleghany and the James Foundation could validly contract for the purchase and sale of this controlling interest without previous Interstate Commerce Commission approval,⁴ nevertheless, absent such approval, the performance of that contract — the “accomplishing” or the “effectuating” of the acquisition of the stock — would have been illegal, and, under 49 U.S.C.A. §§ 5(4), 5(7), and 10 (I),⁵ would have made each of the parties guilty of a crime. No court should encourage violation of the clear statutory policy by enforcing performance of such a contract — whether by awarding specific performance of the acquisition or damages for not performing — when Commission approval could not be had within the time limit.^5a

It may be suggested that, had the James Foundation itself (i. e., not through an agent) entered into the contract, there would have been an implied waiver of the time provision. Such a suggestion would be of doubtful cogency since, in the face of that provision, it would seem that Alleghany took the risk of not in time procuring the Commission’s approval. But we need not now so decide, since here the sales contract was made by agents whose sole authority, contained in the agreement between the Foundation and W & P, gave no power to waive the time provision, and the Foundation did not in any way ratify such an implied waiver.

We think the Interstate Commerce Commission, by its decision in Chesapeake & O. Ry. Co. Purchase, 261 ICC 239 (1945), did not give advance approval of any future purchase by Alleghany of the controlling stock of any railroad, provided only Alleghany deposited the stock with the Chase National Bank under the trust agreement which conferred on that bank as trustee the exclusive power to vote the stock, since, in its opinion in that case, the Commission stated (p. 241): “It is the intention of Alleghany to acquire or dispose of securities of other corporations from time to time, including securities of carriers subject to regulation under the Interstate Commerce Act. It is, however, Alleghany’s intention to limit its control of such carriers to the Chesapeake & Ohio and its affiliated carriers so long as such control continues and subject to the right of Alleghany to apply for control of such other carrier or carriers as it may consider to be in the public interest.” ⁶ The Commission also said (p. 261): “We have given careful consideration to the proposal by Alleghany in its petition filed on April 13, 1945, and heretofore described more in detail, with respect to limiting its control of carriers subject to the Act to only the Chesapeake & Ohio and its affiliated companies, unless further authorization be granted by us. We conclude that such restriction of control is desirable and shall impose conditions in this respect.” ⁷

These statements must, we think, be read as qualifying the approval the Commission gave in 1945 of the retention or purchase by Alleghany of the stocks then specifically under consideration. Otherwise, there would have been a surprising advance benediction of all Alleghany’s future acquisitions of control. 49 U.S.C. A. § 5(2) (b) requires that, “Whenever a transaction [for control] is proposed”, the Commission, before entering an approval order, “shall notify the Governor of each State in which any part of the properties of the carriers involved in the proposed transaction is situated,” shall “afford reasonable opportunity for interested parties to be heard”, and shall make a finding that the transaction “will be consistent with the public interest”. This requirement, we think, precludes the entry of any blanket Commission order approving future control-acquisitions of any un-named railroad whatsoever.

Affirmed.

1 . The agreement between the James Foundation and W & P also provided that the power delegated to W & P should ceaso to exist on February 14, 1951. Assuming, arguendo, that it would have sufficed if Alleghany were able to perform by February 14, still Alleghany had, at most, but nine days to procure Interstate Commerce Commission approval.

2 . Pertinent portions of 49 U.S.C.A. § 5 read as follows:

“(2) (a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) — (i) for two or more carriers to consolidate or merge their properties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership; or for any carrier, or two or more carriers jointly, to purchase, lease, or contract to operate the properties, or any part thereof, of another; or for any carrier, or two or more carriers jointly, to acquire control of another through ownership of its stock or otherwise; or for a person which is not a carrier to acquire control of two or more carriers through ownership of their stock or otherwise; or for a person which is not a carrier and which has control of one or more carriers to acquire control of another carrier through ownership of its stock or otherwise; or (ii) for a carrier by railroad to acquire track-age rights over, or joint ownership in or joint use of, any railroad line or lines owned or operated by any other such carrier, and terminals incidental thereto.

“(b) Whenever a transaction is proposed under subparagraph (a), the carrier or carriers or person seeking authority therefor shall present an application to the Commission, and thereupon the Commission shall notify the Governor of each State in which any part of the properties of the carriers involved in the proposed transaction is situated, and also such carriers and the applicant or applicants (and, in case carriers by motor vehicle are involved, the persons specified in section 305(e)), and shall afford reasonable opportunity for interested parties to be heard. If the Commission shall consider it necessary in order to determine whether the findings specified below may properly be made, it shall set said application for public hearing; and a public hearing shall be held in all cases where carriers by railroad are involved unless the Commission determines that a public hearing is not necessary in the public interest. If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subparagraph (a) and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable: Provided, That if a carrier by railroad subject to this chapter, or any person which is controlled by such a carrier, or affiliated therewith within the meaning of paragraph (6), is an applicant in the case of any such proposed transaction involving a motor carrier, the Commission shall not enter such an order unless it finds that the transaction proposed will be consistent with the public interest and will enable such carrier to use service iV motor vehicle to public advantage in its operations and will not unduly restrain competition.

“(c) In passing upon any proposed transaction under the provisions of this paragraph (2), the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.

“(d) The Commission shall have authority in the case of a proposed transaction under this paragraph (2) involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest.

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“(3) Whenever a person which is not a carrier is authorized, by an order entered under paragraph (2), to acquire control of any carrier or of two or more carriers, such person thereafter shall, to the extent provided by the Commission in such order, be considered as a carrier subject to such of the following provisions as are applicable to any carrier involved in such acquisition of control: Section 20(1) to (10), inclusive, of this chapter, sections 304(a) (1) and (2) and 820 of chapter 8 of this title, and section 913 of chapter 12 of this title, (which relate to reports, accounts, and so forth, of carriers), and section 20a(2) to (11), inclusive, of this chapter, and section 314 of chapter 8 of this title, (which relate to issues of securities and assumptions of liability of carriers), including in each case the penalties applicable in the case of violations of such provisions. In the application of such provisions of section 20a of this chapter and of section 314 of chapter 8 of this title, in the case of any such person, the Commission shall authorize the issue or assumption applied for only if it finds that such issue or assumption is consistent with the proper performance of its service to the public by each carrier which is under the control , of such person, that it will not impair the ability of any such carrier to perform such service, and that it is otherwise consistent with the public interest.

“(4) It shall be unlawful for any person, except as provided in paragraph (2), to enter into any transaction within the scope of subparagraph (a) thereof, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. It shall be unlawful to continue to maintain control or management accomplished or effectuated after the enactment of this amendatory paragraph and in violation of its provision. As used in this paragraph and paragraph (5), the words ‘control or management’ shall ho construed to include the power to exercise control or management.

“(5) For the purposes of this section, but not in anywise limiting tlie application of the provisions thereof, any transaction shall be deemed to accomplish or effectuate the control or management in a common interest of two carriers — (a) if such transaction is by a carrier, and if the effect of such transaction is to place such carrier and persons affiliated with it, taken together, in control of another carrier; (b) if such transaction is by a person affiliated with a carrier, and if the effect of such transaction is to place such carrier and persons affiliated with it, taken together, in control of another carrier; (c) if such transaction is by two or more persons acting together, one of whom is a carrier or is affiliated with a carrier, and if the effect of such transaction is to place such persons and carriers and persons affiliated with any one of them and persons affiliated with any such affiliated carrier, taken together, in control of another carrier.

“(6) For the purposes of this section a person shall be held to bo affiliated with a carrier if, by reason of the relationship of such person to such carrier (whether by reason of the method of, or circumstances surrounding organization or operation, or whether established through common directors, officers, or stockholders, a voting trust or trusts, a holding or investment company or companies, or any other direct or indirect means), it is reasonable to believe that the affairs of any carrier of which control may be acquired by such person will be managed in the interest of such other carrier.

“(7) The Commission is hereby authorized, upon complaint or upon its own initiative without complaint, but after notice and hearing, to investigate and determine whether any person is violating the provisions of paragraph (4). If the Commission finds after such investigation that such person is violating the provisions of such paragraph, it shall by order require such person to take such action as may be necessary, in the opinion of the Commission, to prevent continuance of such violation. The provisions of this paragraph shall be in addition to, and not in substitution for, any other enforcement provisions contained in this chapter; and with respect to any violation of paragraphs (2) to (12), inclusive, of this section, any penalty provision applying to such a violation by a common carrier subject to this chapter shall apply to such a violation by any other person.

“(8) The district courts of the United States shall have jurisdiction upon the complaint of the Commission, alleging a violation of any of the provisions of this section or disobedience of any order issued by the Commission thereunder by any person, to issue such writs of injunction or other proper process, mandatory or otherwise, as may be necessary to restrain such person from violation of such provision or to compel obedience to such order.”

The trial judge found that “The purpose of Alleghany in offering to purchase the James Western common stock was to acquire control of Western. * * * ” This finding is supported by the allegations of Alleghany’s complaint and by the testimony of Young, Chairman of the Board of Alleghany. [115 F.Supp. 293.]

3 . The trial judge found the following: The trustees of the James Foundation on February 8 requested Wyer “to see one of the Interstate Commerce Commissioners to informally present the matter and en-deavour to secure an unofficial reaction to a sale to Alleghany. The next day, February 9, Wyer did go to Washington and there saw a member of the'Commission. Wyer was advised, in substance, that should the matter be duly presented, the Commission would probably institute an investigation to determine whether the transfer involved a violation of Secs. 5 (2) and (4) of the Act”.

4 . See, e. g., Watson Bros. Transportation Co. v. Jaffa, 8 Cir., 143 F.2d 340; O. C. Wiley & Sons, Inc., D.C., 85 F.Supp. 542, affirmed 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554; Cleveland, C. C. & St. L. Ry. Co. v. Jackson, 6 Cir., 22 F.2d 509; Zabarsky v. Flemings, 113 Vt. 200, 32 A. 2d 663; Royal Blue Coaches, Inc., v. Delaware River Coach Lines, Inc., 140 N.J.Eq. 19, 52 A.2d 763, appeal dismissed, 2 N.J. 73, 65 A.2d 264; McLean v. Keith, 236 N.C. 59, 72 S.E.2d 44.

5 . 49 U.S.C.A. § 10(1), so far as pertinent, reads as follows: “Any common carrier subject to the provisions of this chapter, or whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation who, alone or with any other . corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or ■ who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this chapter required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this chapter to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this chapter for which no penalty is otherwise provided, or who shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed $5,000 for each offense: * * *_»

5a . See, e. g., Kaiser-Frazer Corp. v. Otis & Co., 2 Cir., 195 F.2d 838, 843-844.

6 . Emphasis added.

7 . Emphasis added.