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perhaps increased the production in the Butte camp.

Upon the case here made by the evidence it is impossible to conclude that the defendants constituted in 1911 such a combination, within the terms of the Antitrust Act, as would justify the granting of an injunction to the plaintiffs, even under the provisions of § 16 of the Clayton Act, which we have quoted.

The decree of the lower courts as to this first claim must be affirmed.

The second contention is that 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.

rights as well as the minority, and that it should not require the former to remain powerless until the creeping paralysis of inactivity shall have destroyed the investment of both.

The case before us is a typical one for the application of this exception to the general rule. The Alice Company was organized in 1880, under the general incorporation laws of the then territory of Utah, with authority [597] to buy, sell, lease, hold, own, and operate mines, mining claims, etc., with many enumerated incidental powers. It acquired the mining properties in controversy in this case and conducted prosperously the mining chiefly of silver ores, until 1893, when its business ceased to be profitable, and was susIt 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. $$ 2424-2429; Noyes, Intercorporate Relations, § 111; Cook, Corp. 7th ed. § 670, p. 217, note.

that the only way in which the stockholders could realize anything from their investment was by sale of its property. Under such circumstances as these the sale of all of the property of the company, if authorized, in good faith and for an adequate consideration, by the owners of a majority of the stock, would be a valid sale, which could not be defeated or set aside by the minority stockholders.

The rule that owners of a majority of the stock may not authorize the sale of all of the property of a going and not unprofitable company rests upon the principle that exercise of such power would defeat the implied contract among the 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 sus-ly 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

The evidence in the case renders it

gamated 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.

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 have here, would not now be entertained. probable that the promoters of the AmalD. R. Wilder Mfg. Co. v. Corn Products Ref. Co. 236 U. S. 165, 174, 59 L. ed. 520, 525, 35 Sup. Ct. Rep. 398, Ann. Cas. 1916A, 118; Paine Lumber Co. v. Neal, 244 U. S. 459, 471, 61 L. ed. 1256, 1264, 37 Sup. Ct. Rep. 718; United States v. Babcock, 250 U. S. 328, 331, 63 L. ed. 1011, 1012, 39 Sup. Ct. Rep. 464. 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, 46 L. ed. 707, 708, 22 Sup. Ct. Rep. 511; Clark v. Wooster, 119 U. S. 322, 326, 30 L. ed. 392, 393, 7 Sup. Ct. Rep. 217.

It is, however, argued that § 16 of the Clayton Act (38 Stat. at L. 730, 737, chap. 323, Comp. Stat. §§ 8835a, 88350, 9 Fed. Stat. Anno. 2d ed. pp. 730, 745), 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 Anti-trust 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. . .

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 581,000,000 pounds, and of the Anaconda Company 1,000,000 pounds (probably an error, 100,000,000 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 1,086,000,000 pounds, and of this the Butte camp, in which there were several mines other than those of defendants, produced 238,000,000 pounds, or approximately 22 per cent. Here again there is no statement as to the total production of the world for that year.

[595] Whatever the fact may have been, it is obvious that from such evidence as this it is not possible to determine to what, if to any substantial, extent, the defendants restrained monopolized the production of copper in the United States, much less in the world.

or

The evidence with respect to price control, although meager, is more definite. 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 Anti-trust Act.

It is obviously impossible to say that these fluctuating prices prove monopolistic control of the price of copper by the de

fendants.

The Amalgamated Copper Company, organized in 1899, is a holding company, and in 1911, when this case was comNo 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 Butte camp.

Upon the case here made by the evidence it is impossible to conclude that the defendants constituted in 1911 such a combination, within the terms of the Antitrust Act, as would justify the granting of an injunction to the plaintiffs, even under the provisions of § 16 of the Clayton Act, which we have quoted.

The decree of the lower courts as to this first claim must be affirmed.

The second contention is that 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.

rights as well as the minority, and that it should not require the former to remain powerless until the creeping paralysis of inactivity shall have destroyed the investment of both.

The case before us is a typical one for the application of this exception to the general rule. The Alice Company was organized in 1880, under the general incorporation laws of the then territory of Utah, with authority [597] to buy, sell, lease, hold, own, and operate mines, mining claims, etc., with many enumerated incidental powers. It acquired the mining properties in controversy in this case and conducted prosperously the mining chiefly of silver ores, until 1893, when its business ceased to be profitable, and was susIt 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. 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. $8 2424-2429; Noyes, Intercorporate Relations, § 111; Cook, Corp. 7th ed. § 670, p. 217, note.

The

that the only way in which the stockholders could realize anything from their investment was by sale of its property. 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 sus-ly 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

The evidence in the case renders it

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 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 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, 46 L. ed. 707, 708, 22 Sup. Ct. Rep. 511; Clark v. Wooster, 119 U. S. 322, 326, 30 L. ed. 392, 393, 7 Sup. Ct. Rep. 217.

It is, however, argued that § 16 of the Clayton Act (38 Stat. at L. 730, 737, chap. 323, Comp. Stat. §§ 8835a, 88350, 9 Fed. Stat. Anno. 2d ed. pp. 730, 745), 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 Anti-trust 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 [594] 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.

was com

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 581,000,000 pounds, and of the Anaconda Company 1,000,000 pounds (probably an error, 100,000,000 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 1,086,000,000 pounds, and of this the Butte camp, in which there were several mines other than those of defendants, produced 238,000,000 pounds, or approximately 22 per cent. Here again there is no statement as to the total production of the world for that year.

[595] Whatever the fact may have been, it is obvious that from such evidence as this it is not possible to determine to what, if to any substantial, extent, the defendants restrained or monopolized the production of copper in the United States, much less in the world.

The evidence with respect to price control, although meager, is more definite. The average price of copper in 1899, the year before the Amalgamated Copper Company was organized, was 17.6 per pound; in 1900 it was 16.1; in 1902, 11.6; in 1904, 12.8; in 1907, 20; in 1908, 13; in 1909, 12.98; 1912, 16; and in 1913, the last year for which the price is given,

15 cents.

It is obviously impossible to say that these fluctuating prices prove monopolistic control of the price of copper by the defendants.

The Amalgamated Copper Company, organized in 1899, is a holding company, and in 1911, when this case 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 Butte camp.

Upon the case here made by the evidence it is impossible to conclude that the defendants constituted in 1911 such a combination, within the terms of the Antitrust Act, as would justify the granting of an injunction to the plaintiffs, even under the provisions of § 16 of the Clayton Act, which we have quoted.

The decree of the lower courts as to this first claim must be affirmed.

The second contention is that 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.

rights as well as the minority, and that it should not require the former to remain powerless until the creeping paralysis of inactivity shall have destroyed the investment of both.

The case before us is a typical one for the application of this exception to the general rule. The Alice Company was organized in 1880, under the general incorporation laws of the then territory of Utah, with authority [597] to buy, sell, lease, hold, own, and operate mines, mining claims, etc., with many enumerated incidental powers. It acquired the mining properties in controversy in this case and conducted prosperously the mining chiefly of silver ores, until 1893, when its business ceased to be profitable, and was susIt 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. $8 2424-2429; Noyes, Intercorporate Relations, § 111; Cook, Corp. 7th ed. § 670, p. 217, note.

that the only way in which the stockholders could realize anything from their investment was by sale of its property. 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 sus-ly 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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