Maxler v. Freeport Bank

Opinion by

Mr. Justice Sadler,

The Freeport bank was incorporated under the Act of May 13, 1876, P. L. 161, with an original capital of $50,000, divided into shares having a par value of $100 each, and, by 1922, had accumulated a surplus of equal amount, with undivided profits of $20,000, or more. It determined to acquire the right's and privileges of a trust company, and, instead of taking advantage of the provisions of the Act of July 17, 1919, P. L. 1032, a new corporation was formed under the Act of 1874, amended by the Act of May 9, 1889, P. L. 159, with a capital of $125,000. The stockholders agreed to transfer to it the assets of the bank, taking in payment two shares of the new company for each one of the old, the remaining 250 being reserved for sale at $120, the funds so received to be used in the development of the business.

At a meeting of the stockholders duly convened, holders of nineteen shares in the bank, of which plaintiff owned sixteen, protested against any sale. Ninety per cent or more favored the proposal, and voted affirmatively, when a resolution to that effect was presented by the directors. To prevent the consummation of the plan, this bill was filed. A preliminary injunction was refused, upon condition that a bond in the sum of $20,-000 be given to protect Maxler’s interest, and this appeal was then taken from the decree entered.

The question now presented is the right of the banking corporation to dispose of its property, notwithstanding objection by a dissenting stockholder. If the company came within one of the classes named in the General Corporation Act of 1874, there would be no doubt of the proper answer, for this legislation was amended on April 17, 1876, P. L. 29, and by section 23, as modified, full power is given to “sell, assign, dispose of, and convey to any corporation created under, or accepting the provisions of, this act, its franchises, and all its property, real personal and mixed.”

The Act of May 13,1876, P. L. 161, regulating banking companies, makes no express provision for the sale of the entire property to another corporation, though section 6 directs that its officers may fix the manner in which “its property [may be] transferred and general business conducted,” and section 26 permits the liquidation of such a company on vote of two-thirds of the stockholders, the surplus, after the payment of indebtedness, to be distributed pro rata.

But we do not think express statutory permission is required to authorize the disposal of all the assets, not including, however, franchises acquired by virtue of the original charter granted. “A corporation has full power to alienate its property, both real and personal, unless restricted by its charter. Ownership of property, whether real or personal, carries with it the same general power of disposition in corporations as in individuals, except where that power is restrained by statute or by considerations of public policy”: 7 R. C. L. 571. This rule was early recognized in Pennsylvania, and forcefully declared, in a well-considered opinion (Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42, 44), which has been subsequently cited with approval: Koehler v. St. Mary’s Brewing Co., 228 Pa. 648; Illoway v. Daly, 65 Pa. Superior Ct. 333. It is true, as held in those cases, the dissenting stockholder cannot be compelled to accept other than cash for his holdings, but, in the present case, the rights of the appellant were fully protected by the order entered by the learned court below.

If the Freeport Bank could be classed as a public, rather than a private, corporation, and attempted to relieve itself, by tbe transfer of its property, from tbe performance of an obligation owing to the State at large, a different situation would be met (P. & C. R. R. Co. v. B. & B. R. R. Co., 81* Pa. 104), and tbe distinction was recently pointed out again by this court in Wolf v. Excelsior Co., 270 Pa. 547. See also Foster v. Fowler & Co., 60 Pa. 27; Johnson Co. v. Miller, 174 Pa. 605. Here, no attempt was made to assign tbe franchises of tbe bank, or release it from any duty owed by reason of tbe charter originally granted. Tbe assets were merely transferred into tbe newly formed trust company, a step evidently deemed proper by tbe legislature, though not in terms authorized, as indicated by tbe act relating to tbe payment of bonus on capital stock (Act May 28, 1913, P. L. 357), and that permitting banking corporations to act in a fiduciary capacity: Act July 17, 1919, P. L. 1032.

In making tbe sale, tbe rights of tbe public are not adversely affected, and those of tbe plaintiff are amply protected by tbe bond to insure him payment in cash of a just valuation of tbe few shares be owns: Barnett v. Phila. Market Co., 218 Pa. 649. In no way has complainant shown any barm will be inflicted by tbe transfer. He is -not ordered to accept tbe new stock of tbe trust company in lieu of that held by him in tbe bank, though tbe ratio of exchange proposed seems to fairly represent tbe book value of tbe latter, and tbe bolding of tbe shares of tbe new corporation would reduce the legal liability in case of insolvency, rather than increase it, as suggested by appellant: Dehaven v. Pratt, 223 Pa. 633.

It is to be remembered that tbe interposition of tbe equity court is to prevent tbe working of some real injury. No such possibility appears here, and tbe injunction was therefore properly refused: Hamilton v. Foster, 272 Pa. 95, 104; Casinghead Gas Co. v. Osborn, 269 Pa. 395; Oberly v. Frick Coke Co., 262 Pa. 83; Crawford v. Sullivan, 238 Pa. 142. Further, this appeal is from tbe order refusing an injunction to stay tbe sale, since which time the transfer has actually been made. Even if the legal contention of the plaintiff could be sustained, no effective relief could now be ordered preliminarily. If any rights exist, they must be considered after the case has been heard on its merits: Silliman v. Whitmer, 173 Pa. 401.

The assignments of error are overruled, and the decree is affirmed at the costs of appellant.