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the Anaconda Company, under the cir- | assignments as should be necessary to cumstances disclosed in this case, had complete the sale, and a deed in form the legal right to acquire the Alice prop-conveying all of the Alice property to the erties for the purposes and in the man- Anaconda Company was executed and dener in which they were acquired. livered by [592] them on May 31, 1910.

United States v. E. I. DuPont De The consideration, thirty thousand Nemours & Co. 188 Fed. 127; Taft, Anti- shares of the capital stock of the trust Act & Supreme Ct. pp. 112, 126; Anaconda Company, was paid, and the MacGinniss v. Boston & M. Consol. Cop-purchaser took possession of the propper & S. Min. Co. 29 Mont. 428, 75 Pac. erty. 89; Bigelow v. Calumet & H. Min. Co. Almost a year later, on April 15, 1911, 155 Fed. 869, 167 Fed. 704, 94 C. C. A. at a special meeting of the stockholders 13, 167 Fed. 721; Standard Oil Co. v. of the Alice Company, a resolution was United States, 221 U. S. 1, 66, 55 L. ed. adopted, by the vote of more than two 619, 647. 34 L.R.A.(N.S.) 834, 31 Sup. thirds of the issued capital stock, in favor Ct. Rep. 502, Ann. Cas. 1912D, 734; of dissolving the corporation, and the United States v. American Tobacco Co. board of directors was authorized to take 221 U. S. 106, 55 L. ed. 663, 31 Sup. Ct. the court action prescribed by the laws Rep. 632; Moore, Interstate Commerce, of Utah, under which the company was $ 337; Swift_Co. v. United States, 196 organized, to accomplish such dissolution. U. S. 396, 49 L. ed. 524, 25 Sup. Ct. Rep. Suit for this purpose was instituted in 276; Addyston Pipe & Steel Co. v. the appropriate state court. United States, 175 U. S. 244, 44 L. ed. On November 6, 1911, five months after 148, 20 Sup. Ct. Rep. 96; United States the resolution in favor of dissolution was v. Union P. R. Co. 226 Ú. S. 82, 57 L. adopted, the bill in this case was filed by ed. 131, 33 Sup. Ct. Rep. 53; Northern minority stockholders, praying for a deSecurities Co. v. United States, 193 U. cree, that the deed of May 31, 1910, be S. 331, 48 L. ed. 697, 24 Sup. Ct. Rep. declared void, that it be delivered up and 436; United States v. Trans-Missouri canceled, that the consideration for it be Freight Asso. 166 U. S. 334, 41 L. ed. returned to the Anaconda Company, and 1025, 17 Sup. Ct. Rep. 540; United that all court proceedings to dissolve the States v. E. I. DuPont De Nemours & Alice Company be stayed pending final Co. 188 Fed. 127; 10 Columbia L. Rev. decree in the case. The district court apDec. 1910, p. 687.

proved and confirmed the sale, and its Although the findings of fact made by decree was affirmed by the circuit court the court be not disturbed, and be held of appeals. The case is here on appeal. by this court to be justified by the testi- The appellants claimed in the courts mony in the case, the decree of the court below and argue here that the sale was is nevertheless correct, and should, in i voidable for four reasons, viz.: all respects, be affirmed.

(1) Because the purchase was made in Mason v. Pewabic Min. Co. 133 U. S. pursuit of the purpose of the Amalga- : 50, 33 L. ed. 524, 10 Sup. Ct. Rep. 224; mated Copper Company and the Ana16 Cyc. 478; Wheeler v. Abilene Nat. conda Company to monopolize the proBank Bldg. Co. 16 L.R.A.(N.S.) 892, 89 duction of copper in the Butte camp, C. C. A. 477, 159 Fed. 391, 14 Ann. Cas. and to restrain the sale of it in interstate 917; Koehler v. St. Mary's Brewing Co. commerce and in the markets of the world, 228 Pa. 648, 139 Am. St. Rep. 1024, 77 in violation of the Sherman Anti-trust Atl. 1016; Bowditch v. Jackson Co. 76 Act; N. H. 351, L.R.A.1917A, 1174, 82 Atl. (2) Because the owners of less than all 1014, Ann. Cas. 1913A, 366.

of the capital stock of the Alice Company

could not authorize the sale of all of the Mr. Justice Clarke delivered the opin- property of the corporation over the proion of the court:

test of owners of a minority of the stock; With formalities, which are not assailed, [593] (3) Because the Alice Coma special meeting of the stockholders of pany could not lawfully acquire stock in the Alice Gold & Silver Mining Company, another corporation; and by resolution, ratified a contract in writ- (4) Because the sale was negotiated by ing, theretofore authorized by the board two boards of directors, with a common of directors and executed by the officers membership, and for an inadequate conof the company, for the sale to the Ana- sideration. conda Copper Mining Company of all We shall consider these claims in the the property, of every kind, of the Alice order stated. Company. The officers were authorized With respect to the first contention. It and directed to execute such deeds and is now the settled law that the remedies

provided by the Anti-trust Act of July 2,, corporations, the union of which in this 1890 [26 Stat. at L. 209, chap. 647, Comp. manner in the Amalgamated and AnaStat. § 8820, 9 Fed. Stat. Anno. 2d ed. conda Companies constituted the alleged p. 644], for enforcing the rights created unlawful combination in restraint of interby it, are exclusive; and therefore, look- state trade or commerce. ing only to that act, a suit, such as we The evidence in the case renders it have here, would not now be entertained. probable that the promoters of the AmalD. R. Wilder Mfg. Co. v. Corn Products gamated Company, when it was organized Ref. Co. 236 U. S. 165, 174, 59 L. ed. in 1899, entertained schemes or dreams 520, 525, 35 Sup. Ct. Rep. 398, Ann. of controlling the supply and price of Cas. 1916A, 118; Paine Lumber Co. v. copper in the interstate markets of this Neal, 244 U. S. 459, 471, 61 L. ed. 1256, country and in the markets of the world, 1264, 37 Sup. Ct. Rep. 718; United States and that they did what they could to v. Babcock, 250 U. Š. 328, 331, 63 L. ed. make that company rich and powerful. 1011, 1012, 39 Sup. Ct. Rep. 464. But But we are dealing with the Anaconda the law has become thus settled since this Company as it was in 1911, and with the suit was commenced in 1911, and the lower extent to which its control of production courts, upon the allegations in the bill, and of prices appears in the record beproperly assumed jurisdiction and dis- fore us. posed of the case. Busch v. Jones, 184 There is evidence that the total proU. S. 598, 599, 46 L. ed. 707, 708, 22 duction of copper in the United States Sup. Ct. Rep. 511; Clark v. Wooster, 119 and Alaska in 1899 was 581,000,000 U. S. 322, 326, 30 L. ed. 392, 393, 7 Sup. pounds, and of the Anaconda Company Ct. Rep. 217.

1,000,000 pounds (probably an error, It is, however, argued that § 16 of the 100,000,000 pounds being intended); but Clayton Act (38 Stat. at L. 730, 737, chap. the total production of the world at that 323, Comp. Stat. SS 8835a, 88350, 9 Fed. time is nowhere stated. The production Stat. Anno. 2d ed. pp. 730, 745), passed in the United States in 1910, the year bein 1914, was intended to, and does, modify fore the suit was brought, was 1,086,the prior law, as declared by this court, 000,000 pounds, and of this the Butte and, since our decision will result in re-camp, in which there were several mines manding the cause to the lower court, we other than those of defendants, produced shall consider its bearing upon the case. 238,000,000 pounds, or approximately 22

The applicable provision of the Clayton per cent. Here again there is no stateAct is as follows:

ment as to the total production of the “Sec. 16. That any person

world for that year. shall be entitled to sue for and have in- [595] Whatever the fact may have junctive relief, in any court of the United been, it is obvious that from such eviStates having jurisdiction over the parties, dence as this it is not possible to deteragainst threatened lo or damage by a mine to what, if to any substantial, violation of the Anti-trust Laws extent, the defendants restrained or when and under the same conditions and monopolized the production of copper in principles as injunctive relief against the United States, much less in the threateried conduct that will cause loss or world. damage is granted by courts of equity, The evidence with respect to price conunder the rules governing such proceed- trol, although meager, is more definite. ings...

The average price of copper in 1899, the The contention of the appellants is that year before the Amalgamated Copper they will suffer irreparable loss by the Company was organized, was 17.6 per sale of the Alice properties to the [594] pound; in 1900 it was 16.1; in 1902, 11.6; Anaconda Company, and that the sale in 1904, 12.8; in 1907, 20; in 1908, 13; should therefore be enjoined because in 1909, 12.98; 1912, 16; and in 1913, that company and the Amalgamated the last year for which the price is given, Copper Company constitute a combina- 15 cents. tion in restraint of interstate commerce, within the prohibitions of the Sherman these fluctuating prices prove monopolistic

It is obviously impossible to say that Anti-trust Act. The Amalgamated Copper Company, fendants.

control of the price of copper by the deorganized in 1899, is a holding company, and in 1911, when this case was com

No claim is made that the Anaconda menced, it controlled by capital stock Company restrained or restricted the proownership the Anaconda Company, which, duction of copper, but, so far as there in turn, held the title to the physical is any evidence at all upon the subject, property which had been owned by other it is to the effect that it maintained and

perhaps increased the production in the rights as well as the minority, and that Butte camp.

it should not require the former to reUpon the case here made by the evi-main powerless until the creeping padence it is impossible to conclude that the ralysis of inactivity shall have destroyed defendants constituted in 1911 such a the investment of both. combination, within the terms of the Anti- The case before us is a typical one for trust Act, as would justify the granting the application of this exception to the of an injunction to the plaintiffs, even general rule. The Alice Company was under the provisions of § 16 of the Clay-organized in 1880, under the general inton Act, which we have quoted.

corporation laws of the then territory of The decree of the lower courts as to Utah, with authority (597] to buy, sell, this first claim must be affirmed.

lease, hold, own, and operate mines, minThe second contention is that the ing claims, etc., with many enumerated owners of less than all of the capital incidental powers. It acquired the mining stock of the Alice Company could not properties in controversy in this case and authorize the sale of all of the property conducted prosperously the mining chiefly of the corporation over the protest of of silver ores, until 1893, when its busiowners of a minority of the stock. ness ceased to be profitable, and was sus

It is, of course, a general rule of law pended. Extensive shafts and underthat, in the absence of special authority ground workings were permitted to fill so to do, the owners of a majority of the with water, and for seventeen years before stock of a corporation have not the power the sale the only business done by the to authorize the directors to sell all of company was leasing the upper workings the property of the company, and [596] of the old mines and limited parts of the thereby abandon the enterprise for surface for shallow workings, to "tribwhich it was organized. But to this utors,” who operated in such a small way rule there is an exception, as well es- that, although the expenses of the comtablished as the rule itself; viz.; that pany, chiefly for caretakers, were very when, from any cause, the business of small, its income was less, so that when a corporation, not charged with du- the sale was made an indebtedness of ties to the public, has proved so un- about $35,000 had accumulated. The profitable that there is no reasonable stock of the company was nonassessable, prospect of conducting the business in the it had no resources but the real estate future without loss, or when the corpora- which was sold to the Anaconda Comtion has not, and cannot obtain, the money pany, and the evidence is clear that to necessary to pay its debts and to continue reopen and operate the mines on its propthe business for which it was organized, erty, or to open new mines, would have even though it may not be insolvent in been very expensive and the prospect of the commercial sense, the owners of a profitable operation of them wholly probmajority of the capital stock, in their lematical. Although its properties had a judgment and discretion, exercised in good large speculative value, and therefore the faith, may authorize the sale of all of the company cannot be said to have been inproperty of the company for an adequate solvent, yet it must be accepted as estabconsideration, and distribute among the lished by the evidence that there was no stockholders what remains of the proceeds reasonable prospect of the company being after the payment of its debts, even over able to profitably resume the mining busithe objection of the owners of the minor- ness for which it was incorporated, and ity of such stock. Thomp. Corp. 2d ed. that the only way in which the stock$8 2424-2429; Noyes, Intercorporate Re- holders could realize anything from their lations, $ 111; Cook, Corp. 7th ed. $ 670, investment was by sale of its property. p. 217, note.

Under such circumstances as these the sale The rule that owners of a majority of of all of the property of the company, the stock may not authorize the sale of if authorized, in good faith and for an all of the property of a going and not adequate consideration, by the owners of unprofitable company rests upon the prin- a majority of the stock, would be a valid ciple that exercise of such power would sale, which could not be defeated or set defeat the implied contract among the aside by the minority stockholders. stockholders to pursue the purpose for It is next argued that the sale here in which it was chartered. But this principle controversy is void for the reason that the fails of application when a business, un- Alice Company could (598] not lawfulsuccessful from whatever cause, is susly acquire and hold title to the stock in pended without prospect of revival, and the Anaconda Company in which the the law recognizes that under such con- consideration for the sale was paid. ditions the majority stockholders have Here again the general rule is that provided by the Anti-trust Act of July 2,, corporations, the union of which in this 1890 [26 Stat. at L. 209, chap. 647, Comp. manner in the Amalgamated and AnaStat. § 8820, 9 Fed. Stat. Anno. 2d ed. conda Companies constituted the alleged p. 644], for enforcing the rights created unlawful combination in restraint of interby it, are exclusive; and therefore, look- state trade or commerce. ing only to that act, a suit, such as we The evidence in the case renders it have here, would not now be entertained. probable that the promoters of the AmalD. R. Wilder Mfg. Co. v. Corn Products gamated Company, when it was organized Ref. Co. 236 U. S. 165, 174, 59 L. ed. in 1899, entertained schemes or dreams 520, 525, 35 Sup. Ct. Rep. 398, Ann. of controlling the supply and price of Cas. 1916A, 118; Paine Lumber Co. v. copper in the interstate markets of this Neal, 244 U. S. 459, 471, 61 L. ed. 1256, country and in the markets of the world, 1264, 37 Sup. Ct. Rep. 718; United States and that they did what they could to v. Babcock, 250 U. S. 328, 331, 63 L. ed. make that company rich and powerful. 1011, 1012, 39 Sup. Ct. Rep. 464. But But we are dealing with the Anaconda the law has become thus settled since this Company as it was in 1911, and with the suit was commenced in 1911, and the lower extent to which its control of production courts, upon the allegations in the bill, and of prices appears in the record beproperly assumed jurisdiction and dis- fore us. posed of the case. Busch v. Jones, 184 There is evidence that the total proU. S. 598, 599, 46 L. ed. 707, 708, 22 duction of copper in the United States Sup. Ct. Rep. 511; Clark v. Wooster, 119 and Alaska in 1899 was 581,000,000 U. S. 322, 326, 30 L. ed. 392, 393, 7 Sup. pounds, and of the Anaconda Company Ct. Rep. 217.

1,000,000 pounds (probably an error, It is, however, argued that § 16 of the 100,000,000 pounds being intended); but Clayton Act (38 Stat. at L. 730, 737, chap. the total production of the world at that 323, Comp. Stat. $S 8835a, 88350, 9 Fed. time is nowhere stated. The production Stat. Anno. 2d ed. pp. 730, 745), passed in the United States in 1910, the year bein 1914, was intended to, and does, modify fore the suit was brought, was 1,086,the prior law, as declared by this court, 000,000 pounds, and of this the Butte and, since our decision will result in re- camp, in which there were several mines manding the cause to the lower court, we other than those of defendants, produced shall consider its bearing upon the case. 238,000,000 pounds, or approximately 22

The applicable provision of the Clayton per cent. Here again there is no stateAct is as follows:

ment as to the total production of the “Sec. 16. That any person

world for that year. shall be entitled to sue for and have in- [595] Whatever the fact may have junctive relief, in any court of the United been, it is obvious that from such eviStates having jurisdiction over the parties, dence as this it is not possible to deteragainst threatened loss or damage by a mine to what, if to any substantial, violation of the Anti-trust Laws

extent, the defendants restrained or when and under the same conditions and monopolized the production of copper in principles as injunctive relief against the United States, much less in the threatened conduct that will cause loss or world. damage is granted by courts of equity, The evidence with respect to price conunder the rules governing such proceed- trol, although meager, is more definite. ings...."

The average price of copper in 1899, the The contention of the appellants is that year before the Amalgamated Copper they will suffer irreparable loss by the Company was organized, was 17.6 per sale of the Alice properties to the [594] pound; in 1900 it was 16.1; in 1902, 11.6; Anaconda Company, and that the sale in 1904, 12.8; in 1907, 20; in 1908, 13; should therefore be enjoined because in 1909, 12.98; 1912, 16; and in 1913, that company and the Amalgamated the last year for which the price is given, Copper Company constitute a combina

15 cents. tion in restraint of interstate commerce, within the prohibitions of the Sherman these fluctuating prices prove monopolistic

It is obviously impossible to say that Anti-trust Act. The Amalgamated Copper Company, fendants.

control of the price of copper by the deorganized in 1899, is a holding company, and in 1911, when this case was com

No claim is made that the Anaconda menced, it controlled by capital stock Company restrained or restricted the proownership the Anaconda Company, which, duction of copper, but, so far as there in turn, held the title to the physical is any evidence at all upon the subject, property which had been owned by other it is to the effect that it maintained and perhaps increased the production in the rights as well as the minority, and that Butte camp.

it should not require the former to reUpon the case here made by the evi- main powerless until the creeping padence it is impossible to conclude that the ralysis of inactivity shall have destroyed defendants constituted in 1911 such a the investment of both. combination, within the terms of the Anti- The case before us is a typical one for trust Act, as would justify the granting the application of this exception to the of an injunction to the plaintiffs, even general rule. The Alice Company was under the provisions of § 16 of the Clay- organized in 1880, under the general inton Act, which we have quoted.

corporation laws of the then' territory of The decree of the lower courts as to Utah, with authority (597] to buy, sell, this first claim must be affirmed.

lease, hold, own, and operate mines, minThe second contention is that the ing claims, etc., with many enumerated owners of less than all of the capital incidental powers. It acquired the mining stock of the Alice Company could not properties in controversy in this case and authorize the sale of all of the property conducted prosperously the mining chiefly of the corporation over the protest of of silver ores, until 1893, when its busiowners of a minority of the stock. ness ceased to be profitable, and was sus

It is, of course, a general rule of law pended. Extensive shafts and underthat, in the absence of special authority ground workings were permitted to fill so to do, the owners of a majority of the with water, and for seventeen years before stock of a corporation have not the power the sale the only business done by the to authorize the directors to sell all of company was leasing the upper workings the property of the company, and (596) of the old mines and limited parts of the thereby abandon the enterprise for surface for shallow workings, to "tribwhich it was organized. But to this utors," who operated in such a small way rule there is an exception, as well es- that, although the expenses of the comtablished as the rule itself; viz.; that pany, chiefly for caretakers, were very when, from any cause, the business of small, its income was less, so that when a corporation, not charged with du- the sale was made an indebtedness of ties to the public, has proved so un- about $35,000 had accumulated. The profitable that there is no reasonable stock of the company was nonassessable, prospect of conducting the business in the it had no resources but the real estate future without loss, or when the corpora- which was sold to the Anaconda Comtion has not, and cannot obtain, the money pany, and the evidence is clear that to necessary to pay its debts and to continue reopen and operate the mines on its propthe business for which it was organized, erty, or to open new mines, would have even though it may not be insolvent in been very expensive and the prospect of the commercial sense, the owners of a profitable operation of them wholly probmajority of the capital stock, in their lematical. Although its properties had a judgment and discretion, exercised in good large speculative value, and therefore the faith, may authorize the sale of all of the company cannot be said to have been inproperty of the company for an adequate solvent, yet it must be accepted as estabconsideration, and distribute among the lished by the evidence that there was no stockholders what remains of the proceeds reasonable prospect of the company being after the payment of its debts, even over able to profitably resume the mining busithe objection of the owners of the minor- ness for which it was incorporated, and ity of such stock. Thomp. Corp. 2d ed. that the only way in which the stock$8 2424–2429; Noyes, Intercorporate Re- holders could realize anything from their lations, $ 111; Cook, Corp. 7th ed. $ 670, investment was by sale of its property. p. 217, note.

Under such circumstances as these the sale The rule that owners of a majority of of all of the property of the company, the stock may not authorize the sale of if authorized, in good faith and for an all of the property of a going and not adequate consideration, by the owners of unprofitable company rests upon the prin- a majority of the stock, would be a valid ciple that exercise of such power would sale, which could not be defeated or set defeat the implied contract among the aside by the minority stockholders. stockholders to pursue the purpose for It is next argued that the sale here in which it was chartered. But this principle controversy is void for the reason that the fails of application when a business, un- Alice Company could (598] not lawfulsuccessful from whatever cause, is susly acquire and hold title to the stock in pended without prospect of revival, and the Anaconda Company in which the the law recognizes that under such con- consideration for the sale was paid. ditions the majority stockholders have Here again the general rule is that

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