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GEDDES ET AL. v. ANACONDA COPPER MINING COMPANY ET AL.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 25. Argued April 25, 28, 1919; restored to docket for reargument December 8, 1919; reargued March 3, 4, 1920.-Decided January 24, 1921.
1. The Anti-Trust Act of 1890 provided the exclusive remedies for the rights it created; and it did not enable a private party to set aside a sale because the purchaser bought in pursuance of a purpose to restrain interstate commerce in a commodity. P. 593.
2. Although the federal question which was the basis of the jurisdiction of the District Court became settled adversely to the plaintiff's contention by decisions of this court rendered in other cases after this suit was begun, the jurisdiction nevertheless continues to decide the other questions in the case. Id.
3. The evidence fails to show that defendants constituted in 1911, when this suit was begun, such a combination in monopoly or restraint of interstate or foreign trade in copper, within the terms of the Anti-Trust Act of 1890, as would justify granting an injunction to the plaintiff under § 16 of the Clayton Act. Id.
4. When the business of a purely private corporation has proved so unprofitable that there is no reasonable prospect of conducting it without loss, or when the corporation has not, and cannot obtain, the money necessary to pay its debts and to continue its business, even though it may not be insolvent in the commercial sense, the owners of a majority of the capital stock, exercising their discretion in good faith, may authorize a sale of all the corporate property for an adequate consideration, and distribute among the shareholders the net proceeds after payment of debts, even over the objection of the minority shareholders. P. 595.
5. Such a sale, if otherwise valid, will not be set aside upon the ground that the consideration is not money but shares in another corporation, if the shares received as the consideration have such an established value in a general market that the shareholder receiving them may convert them at once into a cash consideration adequate for his interest in the corporate property sold. P. 598.
6. Where the minority shareholders of a corporation seek to set aside a sale of its property to another corporation negotiated and made
Opinion of the Court.
by boards of directors having a member in common, the burden is upon those who would maintain the transaction to show its entire fairness and the adequacy of the consideration. P. 598.
7. Unless clearly erroneous, a concurrent finding of the District Court and the Circuit Court of Appeals that the consideration for the sale was inadequate will be accepted by this court. P. 600.
8. When it appears from the evidence in a suit to set aside a sale that the consideration was inadequate, the court is not justified in affirming the transaction merely because no greater amount is bid upon offering the property at public auction. Id. Mason v. Pewabic Mining Co., 133 U. S. 50, distinguished.
9. In a suit by minority shareholders to set aside for inadequacy of consideration a sale of all the property of their corporation to another corporation for a price paid in shares of the latter's stock, held that, under the pleadings, the court, having found the price inadequate, should have set the sale aside, and was without power to depart from the parties' contract by selling the property at auction for a cash price found adequate. P. 602.
245 Fed. Rep. 225, reversed.
THE case is stated in the opinion.
Mr. T. J. Walsh, with whom Mr. C. B. Nolan was on the briefs, for appellants.
Mr. W. B. Rodgers, with whom Mr. L. O. Evans was on the brief, for appellees.
MR. JUSTICE CLARKE delivered the opinion of the court.
With formalities, which are not assailed, a special meeting of the stockholders of the Alice Gold & Silver Mining Company, by resolution, ratified a contract in writing, theretofore authorized by the board of directors and executed by the officers of the company, for the sale to the Anaconda Copper Mining Company of all the property, of every kind, of the Alice Company. The officers were authorized and directed to execute such deeds and assignments as should be necessary to complete the sale, and a deed in form conveying all of the Alice property to the Anaconda Company was executed and delivered by
Opinion of the Court.
them on May 31, 1910. The consideration, thirty thousand shares of the capital stock of the Anaconda Company, was paid, and the purchaser took possession of the property.
Almost a year later, on May 8, 1911, at a special meeting of the stockholders of the Alice Company, a resolution was adopted, by the vote of more than two-thirds of the issued capital stock, in favor of dissolving the corporation, and the board of directors was authorized to take the court action prescribed by the laws of Utah, under which the company was organized, to accomplish such dissolution. Suit for this purpose was instituted in the appropriate state court.
On November 6, 1911, five months after the resolution in favor of dissolution was adopted, the bill in this case was filed by minority stockholders, praying for a decree, that the deed of May 31, 1910, be declared void, that it be delivered up and cancelled, that the consideration for it be returned to the Anaconda Company, and that all court proceedings to dissolve the Alice Company be stayed pending final decree in the case. The District Court approved and confirmed the sale, and its decree was affirmed by the Circuit Court of Appeals. The case is here on appeal.
The appellants claimed in the courts below and argue here that the sale was voidable for four reasons, viz:
(1) Because the purchase was made in pursuit of the purpose of the Amalgamated Copper Company and the Anaconda Company to monopolize the production of copper in the Butte Camp and to restrain the sale of it in interstate commerce and in the markets of the world, in violation of the Sherman Anti-Trust Act;
(2) Because the owners of less than all of the capital stock of the Alice Company could not authorize the sale of all of the property of the corporation over the protest of owners of a minority of the stock;
(3) Because the Alice Company could not lawfully acquire stock in another corporation; and
(4) Because the sale was negotiated by two boards of directors, with a common membership, and for an inadequate consideration.
We shall consider these claims in the order stated.
With respect to the first contention: It is now the settled law that the remedies provided by the Anti-Trust Act of 1890 for enforcing the rights created by it are exclusive and therefore, looking only to that act, a suit, such as we have here, would not now be entertained. Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U. S. 165, 174; Paine Lumber Co. v. Neal, 244 U. S. 459, 471; United States v. Babcock, 250 U. S. 328, 331. But the law has become thus settled since this suit was commenced in 1911, and the lower courts, upon the allegations in the bill, properly assumed jurisdiction and disposed of the case. Busch v. Jones, 184 U. S. 598, 599; Clark v. Wooster, 119 U. S. 322, 326.
It is, however, argued that § 16 of the Clayton Act (38 Stat. 730, 737), passed in 1914, was intended to, and does, modify the prior law, as declared by this court, and, since our decision will result in remanding the cause to the lower court, we shall consider its bearing upon the case.
The applicable provision of the Clayton Act is as follows: "Sec. 16. That any person shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings.
The contention of the appellants is that they will suffer irreparable loss by the sale of the Alice properties to the
Opinion of the Court.
254 U. S.
Anaconda Company and that the sale should therefore be enjoined because that company and the Amalgamated Copper Company constitute a combination in restraint of interstate commerce within the prohibitions of the Sherman Anti-Trust Act.
The Amalgamated Copper Company, organized in 1899, is a holding company, and in 1911, when this case was commenced, it controlled by capital stock ownership the Anaconda Company which, in turn, held the title to the physical property which had been owned by other corporations, the union of which in this manner in the Amalgamated and Anaconda Companies constituted the alleged unlawful combination in restraint of interstate trade or commerce.
The evidence in the case renders it probable, that the promoters of the Amalgamated Company, when it was organized in 1899, entertained schemes or dreams of controlling the supply and price of copper in the interstate markets of this country and in the markets of the world, and that they did what they could to make that company rich and powerful.
But we are dealing with the Anaconda Company as it was in 1911 and with the extent to which its control of production and of prices appears in the record before us.
There is evidence that the total production of copper in the United States and Alaska, in 1899, was 581 million pounds, and of the Anaconda Company one million pounds, (probably an error, 100 million pounds being intended); but the total production of the world at that time is nowhere stated. The production in the United States in 1910, the year before the suit was brought, was 1,086 million pounds, and of this the Butte Camp, in which there were several mines other than those of defendants, produced 288 million pounds, or approximately 22 per cent. Here again there is no statement as to the total production of the world for that year.