Reed v. Jones , 6 Wis. 680 ( 1858 )

By the Courts

Cole, J.

The only question discussed in the brief of the counsel for the appellants, is the power of the court commissioner to grant the injunction in this case. The inj unction- was granted to restrain the respondent, Jones, from voting or offering to vote at the annual election of the board of directors of the Manitowoc and Mississippi railroad company for 1857, upon, (as it is alleged in the complaint) certain excess of the stock of the company wrongfully held by Jones; the stock having been issued to him by the company in pursuance of a contract between him and the company for the conveyance of certain lands on the north and south side of the Manitowoc river. It was alleged in the complaint, that an examination of the records in the register’s office of Manito-woe county showed that a title to a part of the lands which Jones had sold the company was defective, and which lands were the consideration for the stock issued to him by the company, and that therefore he had no right to vote at the election upon a proportionable share of the stock. And in one of the points made by the counsel for the respondents, it is contended that the court commissioner had no authority to grant this injunction, for the reason, as is insisted, that the injunction suspended the general and ordinary business of the corporation, and by section 132 of the code, could only be granted by the circuit court or the judge thereof. At the same time it is not denied by the counsel for the respondents that court commissioners can grant injunctions in certain cases, but had the court commissioner authority to grant one in this case ? In other words did the injunction suspend the general and ordinary business of the company within the meaning of section 132 of the Code ? We think not. We must give to the language of the Code in this place, its popular and usual meaning. What then do we understand to be the general and ordinaiy business of a railroad company. ? Is it the election of boards of directors, as required from time to time by its charter and by-laws ? Is this the common, ordinary business of a railroad corporation ? Is it the principal part of its business? Is it any considerable part of its business, or is it not rather entirely subordinate and incidental to the main object and business of the corporation ? These questions suggest their own answer. We understand that the company is not created chiefly and principally to elect its board of directors, however necessary a board of directors may be, to oversee, and carry on and accomplish the main primary object and purpose of the company. The “general and ordinary business” of a railroad company is universally understood to be that of building and keeping in repair its road, furnishing the rolling stock for the road, and operating it for the transportation of property and passengers. It has to do many things as incidental and necessary to effectuate and attain its main purpose. But it is quite obvious that the company might go on in the prosecution and transaction of its general and ordinary business of building, furnishing and operating the road, even if the election of a board of directors upon a certain day should be suspended or postponed. Section 3 of the charter expressly provides (Session Laws, 1851, page 313) that if from any cause an election of directors shall not be held at the regular time specified therefor, the same may be held at any other time on a notice, &c., and that until such election, the directors of the preceding year shall continue to act, and the charter should not be avoided by reason of the irregularity or want of such election, so that we conclude that the injunction in this case did not “ suspend the general and ordinary business of the corporation,” within the intent and meaning of section 132 ofthe Code. But nevertheless we are of the opinion that the injunction was properly dissolved, on other grounds than a want of authority on the part of the court commissioner to grant it. The case presented by the complaint is not such a one as to entitle the party to a preliminary injunction. Theinjnnctionwas asked for to restrain andpre-vent the respondent Jones, from voting at the annual election of the board of directors upon an alleged excess of stock held by him as one of the stockholders of the company. But it does not appear from the complaint that the company has taken any steps whatever to declare this excess of stock void and cancel it. It would be premature at this stage of the cause, before the coming in of the answer and proof, to enter upon a full examination of the rights and liabilities of the parties to the memorandum of an agreement, dated December 16th, 1854, set out in the complaint. But it is quite apparent from this agreement, that Jones was not bound to surrender any portion of his certificate of stock until it was made to appear in some way that some other person had abetter title to the lands which he had sold to the company, or some of them, than he had. The complaint alleges that the plaintiffs are informed and believed “ from searches made for that purpose in the register’s office of said Manitowoc county,” that Jones did not own all the land which he had sold to the company. But still he might have a good, perfect and indefeasible title to all the property, although the records in the register’s office did not show it. Rut Jones might not offer (o vote upon this alleged excess of stock, or if he should vote upon it, the illegal votes might not change the result, or be productive of any great injury to the interests of the plaintiff's or the company. Now upon general principles it would seem improper and most mischievous to grant an injunction upon the complaint of a minority of aboard of directors to restrain a stockholder from voting upon an alleged excess of stock, held by him before the company had taken any steps to cancel the stock or declare it void. We have not been referred to any case where an interposition of the court by injunction has been exercised for such a purpose, and after some research, we have been able to find none. But from the allegations of this complaint it is not easy to perceive how it would produce irreparable and permanent injury to the company or the plaintiffs, even if Jones should vote upon this alleged excess of stock. The complaint fails to show that imminent danger to the property of the plaintiffs is threatened by the contemplated acts; nor does it present any other sufficient ground or reason for arresting and restraining him from voting upon this stock.

The order dissolving the injunction is affirmed.