MacGinniss v. Boston & Montana Consolidated Copper & Silver Mining Co. , 29 Mont. 428 ( 1904 )

ME. CHIEF JUSTICE BBANTLY,

after stating the case, delivered the opinion of the court.

At the hearing in this court counsel for plaintiff interposed motions to' dismiss both' appeals on various grounds, among others, that the order of October 23d is not appealable, and that the notice is ambiguous and uncertain, in that it does, not appear therefrom to which order it refers. There is no merit in the motion so far as it is directed at the appeal from the order of the court entered in the minutes granting the injunction. The notice is couched in separate paragraphs. By reading the first paragraph with each of the other two; there is a separate and distinct notice of each appeal, the notice being almost in the exact form of the one considered in In re Barker's Estate, 26 Mont. 279, 67 Pac. 941. It is a sufficient notice, for it is entirely clear that the respondent understood therefrom that the appellants intended to prosecute two appeals. The fact that two separate notices were included in the same paper, though an apjDeal does not lie from one of the orders, does not affect the right of the appellant to prosecute an appeal from the one which ,is appealable. As to the appeal from, that order, the motion is denied. The evident purpose of the district judge in signing the order, and filing it with the record on October 23d, was that this order shbuld be the injunction, which in form and substance it is, except that it is signed by the district judge. It was intended to perform the office of process, to carry into effect the order of the previous da.y. No appeal lies from an injunction, and the motion as to this appeal is sustained.

Counsel in their briefs have presented and argued many questions which are not pertinent in any manner to this investigation. Much of the appellants’ brief is devoted to an argument to show that the district court had no jurisdiction of the Amalgamated Company, because it had never been served with process nor had appeared in the action. It is not necessary to consider the question thus presented, because, if the district court had no jurisdiction of the Amalgamated Company Ijy service of process, that company is not aggrieved by the order. If it had jurisdiction, and the Amalgamated Company is aggrieved by the order, it took no- appeal, and can obtain noi relief from this court, except so far as the relief granted to the appealing defendants may incidentally affect its .rights.

Much argument in the appellants’ brief is. also devoted to the questions whether or not the Amalgamated Company is engaged in doing business in this state in violation of the law, and whether it is a monopoly and subject to the prohibition contained in Section 20 of Article XV of the Constitution, and the penalties provided by Section 321 of the Penal Code.

The plaintiff sues as a private citizen. He is not, as such, authorized to present, through the medium of a civil action, and try the issue, whether the defendant Amalgamated Company is doing business in this state in violation of a law. A determination of this issue as an independent ground of relief must be had, if at all, by the state, and in its own behalf, through the attorney general. It is no concern of the plaintiff if the state neglects or waives its right to call the defendant to account. In general, the same may also be said as to the issue whether the combination formed by the defendant Amalgamated Company, through its officers and the stockholders of the Montana Company and the other corporations, is a monopoly and in violation of the Penal Code of the state, rendering the defendant Montana Company liable to punishment and a forfeiture of its franchises and property. (Cook on Corporations, Sec. 632; Coquard v. National Linseed Oil Co., 171 Ill. 480, 49 N. E. 563; Stewart v. Erie, etc. Transportation Co., 17 Minn. 372 (Gil. 348) ; City of Grand Rapids v. Grand Rapids Hydraulic Co., 66 Mich. 606, 33 N. W. 749.) Nor do we know of any provision of law authorizing a court of equity,, at the instance of a minority stockholder, to decree a forfeiture of the stock of any stockholder in the same corporation, to the corporation, on the ground that the title of such stockholder has been acquired and is held in violation of the charter of the corporation.

Nevertheless, so far as the participation of the Montana corporation and its officers in an unlawful combination to create a monopoly subjects its property and franchises to forfeiture, and thus imperils the property rights of the minority stockholder, he has a cause of conqplaiut against it and them,- and may, through the medium of a court of equity, compel it and them to abandon such unlawful connection and return to a performance of their obligations under the charter contract of the company, to-wit, to accomplish, through its board of directors, the purpose for which it was formed, and by lawful means. The officers of a corporation are trustees; by their acts in engaging in an unlawful enterprise, and making the corporation a party to it, they are guilty of a breach of trust, and both they and the corporation can be held to account by a’, court of equity, at the suit of a minority stockholder who has- not participated in the violation of the law. (Cook on Corporations, Secs. 646, 647; Forrester et al. v. B. & M. C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353.)

Tbe propriety of tbe action of tbe district court in granting tbe preliminary injunction, therefore, depends upon a solution of two fundamental questions, to-wit: Did tbe transaction by wbicb tbe Amalgamated Company acquired a majority of tbe shares in tbe Montana Company have for its purpose, or result in, tbe formation of a trust within tbe meaning of tbe sections of tbe Constitution and tbe Penal Code referred to; and, if not, is it in violation of tbe rights of tbe plaintiff for tbe Amalgamated Company to own and vote shares of stock in tbe Montana Company, so long as its power is not used to tbe detriment of plaintiff ? An affirmative answer to either of these questions will require an affirmance of tbe order.

Tbe Amalgamated Company was organized under tbe laws of the state of New Jersey on April 21, 1899, tbe charter designating its principal office in Jersey City. Tbe incorporators were persons intimately associated with tbe authorities of tbe Montana Company. Its powers and objects are very extensive. It has tbe power, among other things: “(1) To carry on tbe business of mining, milling, concentrating, converting, smelting, treating, preparing for market, manufacturing, buying, selling, exchanging, and otherwise producing and dealing in gold, silver, copper, metals and minerals, and in tbe products and byproducts thereof of every kind and description, and by whatsoever process tbe same can be or may be hereafter produced ; and generally and without limit as to amount, to buy, sell, exchange, lease, acquire arid deal in lands, mines and minerals, rights and claims and in tbe above specified products, and to conduct all business appurtenant thereto. * _ * * (8) To purchase, subscribe for or otherwise acquire, and to bold tbe shares, stocks or other obligations -of any company organized under tbe laws of this state, or of any other state, or of any territory or colony' of tbe United States, or of any foreign country, and to sell or exchange the same, or upon a distribution of tbe assets or division of profits, to distribute any such shares, stocks or obligations or tbe proceeds thereof amongst tbe stockholders of this company.” Its capital stock was originally $15,000,000.

At the time the hearing under the order to show cause was had, it had acquired all the stock in the Washoe Company, the Big Blackfoot Milling Company, and a majority of the shares in the following companies: The Anaconda, Copper Company, the Parrot Silver & Copper Mining Company, and the Hen-nessv Mercantile Company — all Montana corporations. These stocks had been acquired prior to June, 1901. To these may be added the Montana Company and the Butte & Boston Company. In brief, the negotiations by which the shares of these latter companies were acquired are the following: On or about April 15, 1901, the directors of the Montana Company received a proposition from Kidder, Peabody & Co., bankers, of Boston, Mass., that they would undertake to. negotiate an exchange of shares held by the stockholders of that company, to the amount of at least 100,000 shares, for shares of the Amalgamated Company, upon some equitable basis. Pending negotiations, the shares of the Montana Company were to; be deposited in the bank and negotiable receipts issued therefor. If the exchange should be effected, each depositor was to receive- a negotiable receipt for the number of shares of the Amalgamated Company he would be entitled to. If not satisfied with the result of the negotiations, each depositor was to have the- option either to take $-315 per share in money for his certificates, or to- withdraw them altogether. It was further stated that Kidder, Peabody & Co. would reserve the right to- return all stock deposited, unless within seven days after April 25th they were prepared to submit a satisfactory offer for the exchange. Deposits were to be made on or before April 25th. This proposition was at once communicated by the directors' of the Montana. Company to the individual stockholders of that company, with the statement that all the officers, directors and large stockholders had agreed to make the deposit under the prescribed conditions. The negotiations, thus begun were delayed from time to time. Like negotiations were begun at the same time with the directors and stockholders of the Butte & Boston Company, it being the wish of the Amalgamated Company not to acquire an interest in either company unless it could obtain a majority of the stock in each of them. Finally an agreement was reached for a satisfactory basis of exchange. On June- 6, 1901, the Amalgamated Company, at a meeting of its board of directors called for that purpose in Jersey City, N. J., increased its capital stock to $155,000,000 in order to effect the exchange. This exchange was accomplished in the latter part of June. The increase of the capital stock of the Amalgamated Company had been authorized at a stockholders’ meeting of the company' held in the city of New York on May 22d. The basis of the exchange finally agreed upon was 1 share in the Montana Company for 5 1-3 shares in the Amalgamated Company, and 1 share in the Butte & Boston Company for 11-3 shares. The estimated value of the properties belonging to the two Montana corporations was fixed by engineers employed to examine them at $75,000,000 to $80,000,000, while the market value of their combined stocks was estimated at $90,000,000. The result was that the Amalgamated Company acquired 147,915 shares of a. total of 150,000 in the Montana Company, and 197,222 shares of a. total of 200,000 in the B-utte & Boston Company, thus giving the former complete control of the latter.

To go back for a moment in the order of events. Early in January, 1899, an agreement had been entered into between a number of the stockholders of the Montana Company and a committee consisting of Albert S. Bigelow, Edward C. Perkins and Sidney Chase, the first two being directors of the Montana Company, under the terms of which the stockholders were to and did deposit with the State Street Trust Company, a Massachusetts corporation, for safe keeping, their shares of stock in order to concentrate their power and effect an organization for the purpose of protecting the properties of the company from ruinous and groundless litigation which had, as was stated in the agreement, arisen in the courts of Montana. The Massachusetts corporation was a party to the agreement, but only for the purpose of acting as trustee. The members of the committee were, by the terms of the agreement, constituted sole agents and attorneys for the depositing stockholders. They were empowered by a majority to act for the stockholders in any manner deemed necessary to carry out tbe purposes of tbe trust. They could bring, prosecute and defend suits, or compromise or continue tbem, or take any step in connection witb tbem deemed advisable by counsel. They could vote all shares of tbe stock held in trust at all stockholders’ meetings, either as a, committee or through one of the members authorized h> do so. They could assent to a dissolution of the corporation and the disposition of its property. The agreement could be terminated at any time at the discretion of the committee. This committee is referred to by some of the witnesses as the “protective committee.”

The foregoing partial synopsis of the agreement sufficiently indicates its nature and purposes, and the extensive powers it conferred upon the committee. It does .not distinctly appear from the evidence that the committee had anything to do with the organization of the Amalgamated Company, but the intimate connection shown to exist between it and the' Amalgamated Company is made.manifest by the statement of the secretary and treasurer of the Amalgamated Company, contained in his deposition used at the hearing, that, though the acquired stock is owned by the Amalgamated Company, it is in fact held by the committee, while the company holds the certificates of deposit issued by the committee. What other agreement there was, if any, does nob appear. Nor does it appear, except indirectly, that one of the purposes of the organization of the Amalgamated Company was to acquire the stock of the Montana Company. From the facts stated, however, it would seem that the committee was merely an instrumentality devised to secure some sort of organization or combination of the interests of the Montana corporations, including the Montana Company, which finally culminated in the organization of the Amalgamated Company; for most of the persons engaged in the promotion of the scheme were officers and stockholders of the Montana corporations.

But be this as it may, all the corporations of which the Amalgamated Company has secured control, except the milling and mercantile companies, are engaged in the business of mining copper and other ores and marketing the product. It is not unreasonable to presume that it is a, holding corporation, one design of it being to secure harmony among the servient companies.

We thus have a combination of corporations, the dominant one of which is subject only to the laws of New Jersey, while the servient bodies were all organized and are subject to the laws of the state of Montana. Does this combination fall within the prohibition of the Constitution and of the Penal Code, sufraf

The Constitution declares: “No1 corporation, stock company, person or association of persons in the state of Montana, shall directly, or indirectly, combine or form what is known as a trust, or make' any contract with any person, or persons, corporations or stock company, foreign or domestic, through their stockholders, trustees, or in any manner whatever, for the purpose of fixing the price, or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people. The legislative assembly shall pass laws for the enforcement thereof by adequate penalties to the extent, if necessary for that purpose, of the forfeiture of their property and franchises, and in case of foreign corporations prohibiting them from carrying on business in the state.” (Section 20, Article XV.)

The Penal Code re-enacts the substantive part of this section, and provides penalties for its violation and for other offenses. It is as follows: “Every person, corporation, stock company or association of persons in this state who, directly or indirectly, combine or form what is known as a trust, or make any contract with any person or persons, corporations or stock companies, foreign or domestic, through their stockholders, directors, officers, or in any manner whatever, for the purpose of fixing the price or regulating the production of any article of commerce, or of the product,of the soil for consumption by the people, or to create or carry out any restriction in trade, to limit productions, or increase or reduce the price of merchandise or commodities, or to fix a standard or figure whereby the price of any article of merchandise, commerce or produce, intended for sale, use or consumption, will be in any way controlled, or to create a monopoly in the manufacture, sale or transportation of any such article, or to enter into an obligation by which they shall bind others or themselves not to manufacture, sell or transport any such article below a common standard or figure, or by which they agree to keep such article or transportation at a. fixed or graduated figure, or by which they settle the price of such article, so as to preclude unrestricted competition, is punishable by imprisonment in the state prison not exceeding five years, or by fine not exceeding ten thousand dollars, or both. Every corporation violating the provisions of this section, forfeits to the state all its property and franchises, and in case of a foreign corporation it is prohibited from carrying on business in the state.” (Section 321.)

Article XY, supra, deals generally with the rights and.powers of corporations and associations of persons exercising any of the powers and privileges not possessed by individuals or partnerships, and their duties and purposes. It is prohibitory and restrictive in its general scope and purpose, the design of the convention in adopting its provisions'being to prevent combinations to restrict or repress competition in all industrial pursuits, and to protect the people in general, and the employes of a certain class, against both the legislature and combinations of capital, from unjust impositions. Certain combinations and consolidations are prohibited altogether, as having a necessary tendency to restrict competition, such as consolidation, by purchase or otherwise, by one railroad or other transportation company, with another having a competing line (Section 6), or the control of a telephone or telegraph company by another competing company (Section 14). Apart from- these prohibited combinations, the right of consolidation by corporations or associations engaged in these particular pursuits is not prohibited. Nor are such combinations, either of corporations or individuals, engaged in other pursuits prohibited, except as provided in Section 20. Section 15 declares that any combination or consolidation by a domestic corporation with one organized under the laws of another state or country shall not result in depriving the courts of this state of jurisdiction over the property of such corporations in this state. Apart from these wholesome restrictions and prohibitions, the right of the people to accumulate property and to hold and enjoy it, either by individual effort or by means of associations of natural or artificial persons, is not restricted.

S’ection 20 prohibits any combination or contract which has a particular purpose, to-wit, “fixing the price or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people.” The terms “combine” and “form a trust” were evidently intended to bé read in connection with the expression “for the purpose,” etc., clearly implying that, in order to subject offenders to the severe penalties which the legislature might impose, there must be shown a specific intent to do the prohibited act, or that the association or combination necessarily tends to accomplish the same result. That this is the meaning is clear from the enumeration of persons who may not do the prohibited acts. Corporations, stock companies, natural persons, or partnerships are all included. If the criminal intent is not a necessary ingredient of the evil denounced, then all sorts of combinations are to be deemed prohibited, even ordinary copartnerships, as coming within the letter of the prohibition. Por the terms- “combine” and “form a trust” are of equal dignity. If the former is to be regarded as modified and explained by the clause “for the purpose,” etc., by the same rule must the latter also. .

The term “trust,” if assigned the meaning’; given to it by the text-writers (Cook on Corporations, - Sec. 503a; Spelling on Trusts, Sec. 121), includes any form of combination between corporations, or corporations and natural persons, for the purpose of regulating production and repressing competition' by means of the power thus centralized. It was first used in a narrower sense, we believe, of an organization formed by a combination of several corporations under one direction, by the device of a transfer by the stockholders in each corporation of a majority of the stock to a central committee, who issued to the stockholders in return certificates showing, in effect, that, though they had parted with their stock, they were still entitled to share in the profits, the purpose being to control competition in production and transportation, and thus the price to the consumer. If it be construed as. equivalent to the term “combination” or “consolidation,” the meaning of the section is perfectly clear. If used in the sense of the definition given it by the text-writers, it is none the less clear, though it involves a repetition of the same idea, since the definition includes the idea of criminal purpose, and makes it a necessary ingredient of the offense denounced.

The section of the statute quoted involves the same idea, and demands the same construction, though it is more specific in its provisions, and extends to and includes combinations in restraint of competition in transportation. It denounces every form of combination or contract which has for its purpose, directly or indirectly, the restraint of production or trade in any way or manner, or the control of the price of any article of consumption by the people. It was not the purpose of the convention, or of the legislature, to limit either the term used in the constitution, or in the statute, hy any narrow definition, but to leave it to the courts to look beneath the surface, and, from the methods employed in the conduct of the business, to determine whether the association or combination in question, no' matter what its particular form should chance to be, or what might be its constituent elements, is taking advantage of the public in an unlawful way. (Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577, 74 Am. St. Rep. 189.) In each case, therefore, under these provisions, the nature of the arrangement or combination is a question of fact to be determined by the court from the evidence before it, or from the vice which inheres in the contract itself.

The facts in the record before us, tending to show the purposes and methods of the Amalgamated Company and associate corporations, do not justify the conclusion that the combination involves a criminal intent to evade or transgress tbe provisions of law wbicli bave been considered. Witnesses, who took part in tbe organization of tbe Amalgamated Company and tbe acquisition of tbe stock in question, and wbo are officers of tbe Amalgamated Company as well as of some of tbe Montana corporations, stated tbat tbe exchange of stock was for tbe purpose of investment only; tbat, apart from a solicitude concerning tbe success and prosperity of tbe Montana Company and tbe other servient corporations, they bave taken no interest in their affairs, nor attempted in any way to- control their business, and tbat each of them has been allowed to pursue independently tbe purpose for which it was organized, and to market its own product. Whatever doubt there may be as to the candor and truth of these professions, it does not appear that the combined companies entered into any agreement to control, or have controlled, or attempted to control in any way, the transportation or the price of copper or any by-product of the business, or to regulate the amount of production. Nor does it appear that they have attempted to affect in any way the wages of their employes. The total product of copper in the United States during the jear 1901, for example, was approximately 500,000,000 pounds; Montana properties produced about 210,000,000 pounds of this output. The out put of the associated companies was approximately 150,000,000 pounds, the remainder of the total being the product of other mining companies not associated with them. While the associated companies are thus shown to have produced about three-fourths of the whole product of this state, and nearly one-third of the product of tbe United States, the price persistently decreased from 16% cents per pound early in 1901 to 10 cents in the latter part of that year, and has fluctuated since that time, never rising higher than 15 cents. The dividends of all companies engaged in tbe industry bave persistently declined in value owing to the decline in the price of the product, though tbe amount produced has remained substantially tbe same. Yet there is nothing to indicate that any of the associated companies have anything to do' with these conditions. Indeed, tbe evidence tends to show that they have been the result of natural causes, dependent upon the condition of the market, over which they have had no control. Nor is there any evidence that the Amalgamated Company has in any way attempted to use its power to discriminate in favor of or against any servient company to the advantage of itself or the detriment of any minority stockholders, or to1 affect competition with other companies. While the dominant company might, either by means of its superior position or other connections, perpetrate any of these wrongs, it does not appear to have done so, nor to have manifested any disposition to do so. Hence the evidence does not convict the Montana Company of such unlawful purpose, in connection with the Amalgamated Company, that it is liable for this reason to have its property and franchises forfeited at the suit of the state.

It is not every act of a corporation, though unlawful, that will give the minority stockholder therein a right of action against it. So far as he is not injuriously affected, directly or indirectly, he has no ground to complain, and, until it makes such connections, or pursues such a course as to make it amenable to the law, he cannot be heard to question its action.

It is held by many courts that the mere possession of power by a combination of corporations or associations, or persons, to injuriously repress competition, to regulate production, and fix prices, is against public policy, and all such are by them declared illegal as against public policy. This is,' true of the Illinois Supreme. Court, as will be found by an examination of Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577, 74 Am. St. Rep. 189. It is said in that case: “The material consideration in the case of such combinations is, as a general thing, not that prices are raised, but that it rests in the power and discretion of the trust or corporation taking all the plants of the several corporations to raise prices at any time, if it sees fit to do so.” This case is typical of the class which hold to this doctrine. But an examination of them will reveal the fact that, in each particular case before the court for consideration, it appeared either from the fact proved or admitted, or from the terms of tbe contract itself, tbat tbe defendants entertained and were pursuing tbe unlawful purpose. Tbe manifest purpose of tbe constitution and tbe legislative utterances must be deemed controlling in this jurisdiction.

What we bave said relates only to tbe evidence adduced at tbe bearing under tbe order to1 show cause. If upon tbe final bearing, after tbe issues are made up', it sboúld be made to appear tbat tbe associated companies are proceeding in violation of tbe law, tbe district court would be justified in issuing a perpetual injunction to restrain the Montana Company and its directors from further participating in tbe unlawful connection. This case does not fall within the principle of Forrester & MacGinniss v. B. & M. C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353, as respondent contends.

Tbe contention is made by tbe appellants tbat one corporation may own and vote stock in another corporation, provided its charter authorizes it to do- so; tbat the Amalgamated Company has this- power under its charter; tbat tbe laws of tbe state under which it was created authorizes such a grant; and tbat it has a right to own and vote stock in any Montana corporation, even though it was acquired for tbe purpose of controlling it; and tbat tbe injunction was not properly issued. Tbe respondent admits tbat tbe Amalgamated Company is lawfully authorized by its charter to own and vote stock in any corporation, no matter where organized, but tbat it cannot exercise this power in Montana unless it is permitted to do- so by express provision of law authorizing corporations of Montana to do tbe same thing. There is no such provision of law, counsel say, and therefore tbe exercise of this power contravenes tbe provision contained in Section 11 of Article XY of tbe Constitution, which denies foreign corporations tbe enjoyment, within this state, of “any greater rights or privileges than those possessed or enjoyed by corporations of tbe same or similar character created under tbe laws of tbe.state.”

We bave, then, tbe Amalgamated Company, a corporation duly authorized by its charter, under tbe laws of New Jersey, to bold and vote stock in other corporations, no matter where created. Do the laws of this state authorize mining companies organized in this state to own and vote stock in other mining corporations ? If they do, it is not the duty of the board of directors to- interfere with the exercise of that right by the Amalgamated Company, and the respondent may not compel them to- do so, unless they are guilty of or permit abuses of their trust.

The general rule is that one corporation cannot hold or vote stock in another unless expressly authorized so to do by the terms of its charter or by a statute. This was formerly the rule ^ in England (Green’s Brice’s Ultra Vires, 91) ; but it has been much relaxed by the later decisions, which recognize many exceptions (Id. 92, 93). The general rule prevails in the state and federal courts in this country. Iowa and Maryland are, possibly, the only exceptions. (Latimer v. Citizens' State Bank, 102 Iowa, 162, 11 N. W. 225; White v. Marquardt & Sons, 105 Iowa, 145, 74 N. W. 930; Booth v. Robinson, 55 Md. 419. The case of Califoria Bank v. Kennedy, 161 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198, is an example of the application of the rule. See, also, Parsons v. Tacoma Smelting & Refining Co., 25 Wash. 492, 65 Pac. 765; People ex rel. Peabody v. Chicago Gas Trust Co., 130 Ill. 268, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319, and cases cited; Thompson on Corporations, Sec. 1102; People v. North River Sugar Refining Co., 121 N. Y. 582, 24 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843; Marble Co. v. Harvey, 92 Tenn. 115, 20 S. W. 427, 18 L. R. A. 252, 36 Am. St. Rep. 71.)

This is but a corollary of the- x>rincip-le that, on grounds of public policy, a corporation can do no other act or make any contract that is not expressly or impliedly authorized by1 its charter, read in the light of the general provisions of law on the subject. The converse of the rule is also generally recognized, to-wit, that a corporation is the creature of law, and may do- any act or enter into any contract exp-ressly or impliedly authorized by its charter or the law of its creation.

The Montana Company was organized on June 21, 1887, under Section 446, Eifth Division, Comp. St. 1887,— fox the purpose of mining, milling, smelting, concentrating, buying and selling ores, and doing -a general mining business in connection with such other business as might be useful or profitable, in the state of Montana. Its charter does not, nor did the statute at that time, expressly or impliedly permit it to own or hold stock in other corporations. Its powers were the same as those of like mining companies. Under the application, of the general rule, probably no corporation of its character and purpose could hold stock in another. ^Neither, probably, could an industrial corporation, such as it is, have been organized under the statute su/pm with the power in question; for the enumeration therein of the -purposes for which such corporations could be organized concludes with the general provision, “or of carrying on any other branch of business to aid in the industrial or productive interests of the country and the development thereof.” The purposes specifically enumerated in this section would not authorize the creation of a corporation-with the power to hold stock in another corporation. If the maxim noscitur a sociis be held to’ indicate the rule of construction applicable to the general clause, it is doubtful whether a corporation with such power was included. The territorial court impliedly held that this maxim is not applicable. (Carver Mercantile Co. v. Hulme, 7 Mont. 566, 19 Pac. 213.) But however this may be, and though-this section was carried into the Code of 1895 (Civil Code, Sec. 411), the conclusion reached 'upon the question before us is determined by other provisions of the statute indicating the policy of the law towards mining corporations. Section 527 of this Code authorizes mining corporations, organized under the laws of the territory and state of Montana, owning properties in the same vicinity, “to consolidate their capital stock, debts, property, assets and franchises in such manner and upon such terms as may be agreed upon by their board of directors,” when authorized by a two-thirds vote of the stockholders. If such corporations, may consolidate in any manner and upon any terms without restriction, they may proceed by conveying all their property to a corporation organized for that purpose, or by the purchase by one of the companies of stock of the others in whole or in part.

Again,- tbe legislature of 1899 (Sess. Laws 1899, p. 113) enacted a law popularly known as “House Bill 132,” entitled “An Act to enlarge tlie powers of mining corporations to dispose of, sell, lease, mortgage, exchange, or otherwise convey, all or any part of the property,” etc. This Act in terms authorizes such corporations to sell or exchange any part of their property or assets to another corporation, domestic or foreign, for the whole or any part of the capital stock of another corporation, -whether a mining corporation or not. This provision empowers such corporations to hold stock in others, at least of like character, and, necessarily, to vote it; for the unrestricted ownership of property by a person, whether natural or artificial, carries with it the right to its full use and enjoyment for all purposes for which it may be used or enjoyed.

It is therefore not against the public policy of the state for one corporation to hold and vote stock in another of like character. The provisions of the statutes supra are to be construed as amendments to the general laws authorizing the formation of corporations and defining their powers, within the purview of Section 11 of Article XV of the Constitution, supra. The public policy of the state varies from time to time. It is not to be measured by the private convictions or notions of the persons who happen to be exercising judicial functions, but by reference to the enactments of the lawmaking power, and, in the absence of them, to the decisions of the courts. When, however, the legislature has spoken upon a particular subject and within the limits of its constitutional powers, its utterance is the public policy of the state. (United States v. Trans-Missouri Ass’n, 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007.) .

The Constitution (Article XV, Sec. 15) does not prohibit consolidations. Its prohibition extends only to any device by which an attempt is made to deprive the state courts of jurisdiction. Section 521 of the Civil Code expressly authorizes consolidations of domestic corporations. House Bill 132, supra, impliedly authorizes them, between domestic and foreign corporations, or, at least, goes to the extent of empowering one domestic corporation to hold stock in another of a similar character.

But counsel for respondent say that these statutory provisions do not apply to the Montana Company, because as to it, at least, having been enacted after its organization, they impair the obligation of the corporation contract, and thus infringe upon the rights of the plaintiff. It may be conceded that, so far as they attempt to increase the powers of that corporation without consent of all of its stockholders, they may be violative of the constitutional prohibition. But this objection does not arise as to corporations formed since their enactment. The holding of stock in a corporation by one person or another does not affect the rights of any other stockholder so long as the purposes of the corporate body are carried out under its charter for the benefit and profit of all the stockholders alike, according to the best judgment of those who have the active management of its business, and so long as the transaction by which the stock was obtained does not violate any provision of the statute or of the constitution. (Trust Co. v. Georgia, 109 Ga. 736, 35 S. E. 323, 48 L. R. A. 520.) Whenever, in the conduct of the business, the purposes of the charter of the Montana Company are ignored and the rights of the minority stockholders are disregarded, the courts of this state have ample power by way of injunction, or a receivership if necessary, to compel it to observe its contract obligations with the state and stockholders, notwithstanding its connection with the Amalgamated Company.

It does not appear from any evidence in the case that the Amalgamated Company, by any act of control over the Montana Company, has affected in any way the rights of the plaintiff as a stockholder. On this branch of the case, therefore, the plaintiff has no cause of complaint.

Inquiry was made of one of the witnesses at the hearing as to the ownership of the shares of stock which are the foundation of this action. The inquiry was made in an attempt to show that the shares, though'standing in the name of the plaintiff, are in fact owned by the Montana Ore Purchasing Company, a rival corporation, and that tbe action cannot, therefore, be maintained by tbe plaintiff. When tbe issue is made, as in this case, as to tbe ownership of tbe subject of tbe controversy, it is competent for tbe defense, if they can, to show that tbe plaintiff is not in fact the owner of it; for tbe statute (Code of Civil Procedure, Sec. 570) declares that tbe action shall be prosecuted by tbe real party in interest. Tbe inquiry should have been permitted. Generally speaking, tbe motives actuating tbe plaintiff do not, as contended by appellants, affect tbe merits of tbe action. One possessing a right may enforce it notwithstanding bis motive may be evil. (Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; Bordeaux v. Greene, 22 Mont. 254, 56 Pac. 218.) Tbe motive may not, therefore, be tbe subject of inquiry, except when it may be ground for impeachment.

Tbe order of tbe district court is reversed, and tbe cause is remanded for further proceedings.

Reversed and remanded.