People v. Albany & Susquehanna Railroad

Upon the issues presented in the pleadings, and the mass of evidence taken upon this trial, the first question presented for my decision relates to the power of the court in equity to give the relief demanded in the complaint.

The mode of determining the title of a party to an office prior to the Code was by quo warranto, or by information in the nature of a quo warranto •, and these proceedings could only be instituted and prosecuted to effect m the courts of law.

Section 428 of the Code declares that the writ of scire facias, the writ of quo warranto, and- proceedings by information in the nature of quo warranto, are abolished, and that the remedies heretofore obtainable in those forms may be obtained by civil actions, under the provisions of that chapter.

Section 432 of the same chapter. provides that an action may be brought by the attorney general, in the name of the people, upon his own information, or upon the complaint of any private parties against the parties offending:— tc Where any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in, or corporation created by the authority of this state,” and section 450 of the same chapter, is as follows: u Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in order to

The issues of fact thereupon formed in this action, were in the first instance and are triable by the court, but the two most important and leading issues might have been submitted to a jury, and if an application had in due time been made for that purpose, it would most probably have been granted, and the court thus have been relieved of the unpleasant burden and responsibility of passing upon the facts of the case. But no application or suggestion of that kind was made to the court until the cause had proceeded to trial, and the attorney general had opened the case, read the pleadings, and rested, when the parties and' counsel being on both sides present and not unprepared for trial, and a large number of witnesses also being in attendance, I held that the application came too late, and that the trial must proceed. It remains, therefore, for me to pass upon the issues made by the pleadings, as.with other cases tried by the court.

Before proceeding to discuss the evidence applicable to the leading issues in the action, I will state such preliminary facts as I deem fully established by the evidence and undisputed.

The Albany and Susquehanna Railroad is a corporation organized in 1851, under the general Railroad Act of 1850, with a capital originally of $1,400,000, divided into 14,000 shares of $100 each, and subsequently increased, by special act of the legislature, to $4,000,000; and entitled, under, the fifth section of the general act, to thirteen directors, to be chosen annually by a majority of the votes of the stockholders voting at such election, in such manner as may be prescribed in the by-laws of the corporation.

The by-laws provide that the annual election of directors should be held on the first Tuesday of September, 1852, and on the same day in each year thereafter, at such place as

At the stockholders’ meeting convened in pursuance to this notice, it also appears that the inspectors of election chosen at the annual election in 1868, to conduct the election for 1869, did not qualify and act, having been restrained from so doing by injunction, and that as the proper resource of the stockholders in that exigency, both classes of stockholders desiring to contest such election, proceeded to choose inspectors for such election. It is not disputed that such was the right of the stockholders so appearing, (See Matter of Wheeler, Abb., n. s., 361.)

Upon the evidence on the merits, it appears that on the day and at the place fixed for such election, the stockholders of said railroad company appeared in large numbers and

The chief issues for my decision arise upon these facts, and the evidence relates to these conflicting claims, and I will proceed to discuss them in the order in which they were tried.

First—Was the election of the board called the Ramsey board of directors valid and legal, or otherwise.

The evidence, I think, clearly establishes that the inspectors—Snow, Eddy and Harder—who held this election, were chosen at a meeting of the stockholders, held in the hall of the company’s office or building, organized soon, and I think from ten to fifteen minutes after twelve o’clock at noon; that they took the oath of office prescribed by the statute regulating elections by incorporated companies (Rev. Stats., part 1, chap. 18, title 4, § 7,) and immediately proceeded to open the polls and receive votes from the stockholders present offering the same, and received the votes of persons so voting, in person and by proxy, upon .10,742 shares of the stock of such corporation, all of which votes were given for the said class of directors, headed by the said J. Pierepont Morgan, and that they held such poll open until about half-past one o’clock of the same day, and then canvassed the votes and made and executed in proper form a certificate of election, certifying in form and effect that the said class of thirteen persons headed by J. Pierepont

So far as the form of the proceedings upon this election is concerned, I do not see why it was not m all respects regular and valid. The inspectors took the proper oath, and proceeded in the usual and regular way to hold said election. The treasurer presented to them an alphabetical list of the names of the stockholders entitled to vote at sueh election, comprising the names of all the stockholders whose names appeared upon the ledger and transfer books on the previous 7th of August, or whose stock, scrip, power of attorney, or assignment for transfer had been presented to the treasurer for transfer before that day. No votes were received except from persons, or their proxies, who appeared by such list of stockholders to have been stockholders on the said 7th of August, and their names were carefully marked and checked upon such list as their ballots were received. It is true that every vote so received was challenged by some person appearing and claiming to have a proxy entitling him to have a vote at such election, but not by any stockholder, or person holding a proxy, who did in fact vote, or offer to vote, at such election. The persons so making the respective challenges did also demand to see the books, or the transfer book, of the company at the time of making such challenges. These challenges were disregarded so far as the same related to the production of the books, but reference in respect to the right to vote, in each case, was made to the said list of stockholders so provided by the treasurer. The party making these challenges was not entitled to a production of the books. The challenges were, doubtless, made in pursuance of the by-law, number 2, of the company, above set forth, which must have been adopted prior to 1852, for the bj-la,w section, number 1, provides for an election to be held on the first Tuesday of September, 1853, and the printed book of by-laws, a copy of which has

After that period the general railroad act was amended in 1854. Section 5 of the amended act provides: u That at . every election of directors the books and papers of such company shall be exhibited to the meeting, if a majority of the stockholders present shall require it.” This provision applies to the election of directors in all railroad companies organized under the general law. But if this by-law were in force it would be simply directory, and the omission to comply with it, and the disregard of the challenge would not invalidate the election, if otherwise valid. It would, doubtless, cast upon the parties claiming under it the bur den of showing that the persons voting at such election, and so challenged, were or appeared by the transfer books on the 7th of August previously, to be actually stockholders in said company, and for the number of shares so voted. This was done on the trial by the production of the books, and the production of the ballots then deposited and preserved, and the proxies presented to the inspectors, and delivered to them at the time of such election. From the books and list of stockholders so voting, the ballots deposited, and the proxies so delivered and produced, it appears that the per sons who voted at that election, in person or by jDroxy, were actual and lawful stockholders of said company at the time, and were legally entitled to vote at such election, with possibly an exception in respect to one or more of such voters, which, as there were no opposing votes, cannot affect the validity of the election, if it were in other respects lawfully held by said inspectors. The fact that the poll of said election was not open until after twelve o’clock, and was held open until after one o’clock, does not affect the validity of the election. It would not have been lawful to open such election before twelve o’clock, for that was the time fixed in the notice and no one was bound to be present before that time, but after the election was begun it was not improper for the inspectors to keep it open as long,

The objection that the meeting of stockholders held in the hall of said office or building was called to order by Henry Smith, not a stockholder, is not tenable. He held a proxy given him and others to vote for one town, and besides he was requested by Ramsey, the President, to call such meeting to order and to act for him, This request was sufficient authority for him to act in the place of Ramsey, who was then held in custody upon an arrest by the Sheriff of Albany, in an adjoining room. The call was recognized by a large number of stockholders then present. Hendricks, who acted as chairman, was a stockholder, and he was chosen by the affirmative votes of many stockholders present, no one objected The votes put by him and the election of the inspectors were fairly and properly put, and the inspectors duly elected by stockholders in such meeting, but few if any voting in the negative. The inspectors immediately entered upon the discharge of their duty, and many stockholders. recognized them as lawful inspectors and proceeded to voté at the poll opened by them. If nothing else appeared, this election so held by them would unquestionably be valid, and the persons voted for as directors declared by them to have been duly elected would be the legal directors of said corporation, if the meeting of stockholders at which they were so elected inspectors was a lawful meeting. And there is no ground for its impeachment presented in the evidence or seriously urged at the trial, except that a prior meeting of stockholders had been duly held in the directors room of said building on the same day, over which Walter S. Church presided, at which another set of inspectors had been duly elected who had opened a prior poll and held another election at which other directors were duly elected, and this brings me to the con

Secondly.—Was the election, held by Hamilton Harris and others acting as inspectors, and at which it claimed that Charles Courier, Walter S. Church and others were elected directors, a legal and valid election ?

The fact is undisputed and indisputable, that a stockholders’ meeting was held in what is called the directors’ room of said company, by á portion of the stockholders’ of the corporation prior to the meeting so held in the hall of said building over which James Hendricks presided; that Walter S. Church was chairman of such meeting, and J. H. Herrick secretary, that Hamilton Harris, Joseph Bush and James Oliver were elected inspectors; that such inspectors immediately proceeded to the room called the treasurer’s room in said building assigned for the purpose of the election and opened a poll, and proceeded to receive such votes of stockholders as were offered, and continued open said poll until 1 o’clock p. m., when they closed the same, canvassed the votes, and declared Walter S. Church and the twelve other persons named and voted for, on the same ticket, duly elected directors of said corporation; and it is also clearly established and undisputed that this stockholders’ meeting was called to order and organized about 15 minutes before 12 o’cock, and that the said inspectors chosen at such meeting proceeded in the treasurer’s room to open the said poll, and took possession of the polling place, and declared that they came there to act as inspectors at about five or six minutes before 12 o’clock, and that about 12 o’clock colonel North who moved the organization of such stockholders’ meeting, moved a reorganization of that meeting, and that said inspectors be reappointed and proceed with said election. Upon the question whether the said inspectors actually received any votes before 12 o’clock, there is a conflict in this evidence.

The organization of this stockholders’ meeting before 12

The notice for the election fixed the time at 12 o’clock at noon, and there was no notice given or published of a stockholders’ meeting for any other time, or for any other meeting of stockholders, except such as was involved in a notice of the election. There was nothing in such notice to apprise the stockholders that there was any occasion for their assembling before 12 o’clock, or that any other business was to be transacted except that of the election. So far, therefore, as this meeting and its acts are concerned, including the appointment of inspectors, I think there can be no doubt that there was surprise and fraud upon many of the stockholders, and as against such stockholders as did not participate in such meeting, the same was irregular and void. All acts done by portions of the corporators, which bear the appearance of trick, secresy or fraud will be held invalid. (Wilcox on Corporations, 51.) Surprise and fraud upon part of the electors is ground for avoiding election. This principle is asserted in numerous cases. (Rex. agt. Gaborian, 11 East, 77; Grant on Corporations, 204; People agt. Peck, 11 Wend. 611 ; Matter of the Pioneer Paper Co., 36 Howard, 108 .) But it is claimed that their organization of the meeting at 11 o’clock cured this irregularity.—This would doubtless be so if the new organization were a full fair, open reorganization like a new meeting, and attended with no circumstances of deception or unfairness. If the meeting held before 12 o’clock had been entirely abandoned in all respects—and it was there announced that it was so abandoned—and the reasons for a stockholders’ meeting had the're been fully stated anew and a new organization then had as of an original meeting, I should have no doubt that such new meeting would be a regular and valid one. But I think this rule will hardly apply in this case. The inspectors had gone to the treasurer’s room and proclaimed themselves inspectors and had opened the polls and

The resolutions passed at the íeorganized meeting were not new resolutions prepared at the moment, but were resolutions previously prepared, and on their face, assume the existence and continuance of an orgnaized meeting and the previous appointment of inspectors. The resolution of the new meeting are as follows:

“Resolved, That this meeting proceed with the annual election of directors and inspectors, with Walter S. Church as chairman, and Jonathan Herrick as secretary.” And next.—

“Resohed, That the annual election of the directors and inspectors proceed with Messrs. Harris, Bush and Oliver as inspectors in the place of Messrs. Hand, Lathrop and Haskell, inelligible and removed.”

It seems to me that if the case depended upon this point, I should be bound to hold that the reorganized meeting was in fact and in legal effect but a continuance of the first meeting.—The first meeting did not break up. The chairman and secretary retained their seats at the table with their friendly stockholders, where they sat at the first meeting, and there was no abandonment of the room or a relinquishment of its pre-occupation by those who held the first meeting, and no formal organization of a new meeting in the ordinary way.

It appears that there was a discrepancy between the time kept at the company’s ticket office, and in the treasurer’s room, and the time-of the watches of the stockholders meeting in which Mr. Church presided, and at the election held by Hamilton Harris and his associate inspectors. This

But the legality of this meeting, in its first organization, and its reorganization and of the election held under its authority, was denied and contested on the trial and argument in connection with these questions, chiefly upon the ground that it was part of a scheme of conspiracy through the form of an election, for a minority of the stockholders of said corporation to obtain the control of said railroad by James Fisk, jr., Jay Grould and others acting in concert with them, and in fraud of the j ust rights of the ■ stockholders holding a majority of the stock of said company.

It clearly appeared that from dissatisfaction on the part of some members of the board of directors with Mr. Ramsey, or other' cause, early in the summer, in conjunction with Messrs Fisk and Grould—(Mr. Harris testified he was re tained by Mr. Grould as counsel in the matter in June,)

This proceeding was entirely legitimate, proper and lawful. It is the law of joint stock corporations that a majority of the stockholders interest shall control in the election of its officers, and its management.

Besides these efforts in the purchase of stock to get the control of the road at the ensuing election, proof was given at the trial to show that resort was had to various judicial proceedings, with the preconcerted design and intent to prevent an honest and fair election, by excluding votes that could not be controlled by the Fisk and Gould interest, and to hinder and prevent a free and true expression of the wishes of the other stockholders at such election, in respect to the future management and control of the said road.

It appears that up, to the time of the commencement of this action, twenty-two different suits had been commenced and instituted by the different parties interested in this controversy. With those suits and proceedings, I have nothing to do in this connection, except as they preceded, related to or were designed to affect, influence or control the election held on the 7th of September.

The first of the suits of this description was commenced by Joseph Bush, on or before the 3d of August, against David Groesbeck, Samuel Sloan, Samuel C. Thompson, Ossian D. Ashley, C. H. Dabney, J. B. Morgan and G. H. Morgan, Goodwin and Waller H. Burns. The complaint alleged that 3,000 shares of the stock of said company had been illegally issued by Mr. Ramsey to said parties in the month of December, 1868, and prayed that said stock be declared unauthorized and void, and be given up to be cancelled, and the holders thereof be restrained by injunction from parting with, assigning, or in any way incumbering the said shares of stock

Upon the facts stated in the complaint in this action, I do not see why this injunction was not properly issued. The facts which existed and now appear that the said 3,000 shares were issued by the express authority of the board of directors upon valid contracts for the benefit of the corporation, and was all valid stock owned by the corporation, acquired by forfeiture for the non-payment of calls made upon the subscriptions were either unknown to, or were purposely suppressed by the plaintiff.

But the order for the appointment of a receiver ex parte must have been granted incautiously and upon some mistaken oral representation or statement of the facts of the case, as it was in clear conflict with the law and settled practice of this court, . In Verplank agt. The Mercantile Insurance Company, 2 Paige, 450, Chancellor Walwoeth states the rule as follows: “ Éy the settled practice of this court in oi'dinary suits, a receiver cannot be appointed ex piarte before the defendant has had an opportunity to be heard in relation to his rights, except in those cases where he is out of the jurisdiction of the court, and cannot be found, or where for some reason it becomes absolutely necessary for the court to interfere before there is time to give notice to the opposite party to prevent the destruction or loss of property.” The same rule is' asserted by the chancellor in Sinclair agt. Sinclair, 8 Paige, 374, and idem in Gibson agt. Martin, 481, and is re-asserted in numerous cases, among which are Field agt. Ripley, 20 How.,26; McCarthy agt. Peak, 9 Abb., 166 , and in Dowling agt. Hudson, 14 Bevan.

In this case no facts are stated in the complaint calling for the immediate appointment of a receiver. It was not stated that the defendants were irresponsible, or that there was any danger of loss from the transfer of the stock, and upon the facts appearing upon the trial such allegations could not have been truly made, for the said defendants are rich men, and generally of abundant responsibility to account for the stock if they had violated the injunction and transferred the scrip, and the plaintiff had not, and did not pretend to have, any title to the said stock or lien upon it, and had simply the rights of a stockholder of said company, if all the allegations in his complaint were true, to have judgment that the said scrip and stock be canceled and surrendered.

But the facts clearly show that these three thousand shares of stock were all valid stock. It was issued by the company, as before stated, by the authority of the board of directors, and composed part of an amount of forfeited stock owned by the corporation. ' By the forfeiture, the stock became the absolute property of the corporation, and might be sold at its value, and a proper stock certificate given therefor, without any re-subscription. (Otter agt. Brevoort Petroleum Company, 50 Barb., 247 , 255 ; State Bank of Ohio agt. Fox, 3 Blach., 433; City Bank of Columbus agt. Bruce, 17 N. Y., 512 ; Small agt. Herkimer Manufacturing Co., 2 Com., 337.)

As this stock was thus clearly valid stock in the hands of the defendants enjoined in that suit, and the order for the

The next fraudulent proceeding which seems directed to affect the election are the suits of David Wilbur, in one of which an injunction was issued restraining the defendant Ramsey from acting as president of said railroad company, which suit was followed by another suit on the next day, August 6th, in which Azro Chase was plaintiff, and the corporation and others defendants, in which an injunction was issued, and James Fisk, jr., and Charles Courter, upon an ex parte application, were appointed receivers of said railroad: In pursuance of such appointment it appears that the said James Fisk jr., and Charles Courter immediately applied to the persons in possession of the office of the said railroad company in Albany, and demanded to be let into possession of said railroad as such receivers, and upon being refused such possession attempted to take such possession' by force from persons claiming to be in possession of such office and railroad, under the authority of Robert H. Pruyn, who also had been appointed a receiver of said corr

The appointment of Fisk and Courter as receivers of the said railroad and its property and franchises, is obnoxious to the same objection made to the appointment of Fuller as receiver, in the suit of Bush agt. Groesbech, and following the suits above mentioned, it seems to me must have been applied for and procured—as it was ex parte—in order to affect the election by giving Messrs. Fisk and Courter the advantage of the immediate possession of the said road and the control of its affairs, its books, papers and property.

The next judicial proceeding, which it is claimed on the argument, was designed to affect the election, was the suit of Stanton Courter agt. The Corporation and others, including Hand, Lathrop and Sashell, elected inspectors in the year 1868, for the year 1869. In this suit an injunction was issued restraining the said inspectors from acting as such at said election, on the ground that they were not stockholders of the corporation.

The summons in this suit is dated New York, September 2, 1869. The venue in the action was laid in the county of Broome, in the sixth judicial district, and the injunction was granted by a justice of this court of the first judicial district, doubtless without knowing or having his attention called to the fact, that the place of trial of said action was in another district. The prayer of the complaint was among other things relating to other defendants; that the said Hand, Lathrop and Haskell be restrained from acting as inspectors or from receiving or counting any votes at said election or at any election of officers of said company, and contained no other prayer for relief as against the said Hand, Haskell and Lathrop.

The by-laws, which required the inspectors to be stock

The same persons had been chosen for the three previous successive years as such- inspectors without dissent or objection, and I much doubt whether said by-law was ever of any force or validity, and whether the directors could thus restrict the choice of inspectors. Clearly their election was not void. The election of an unqualified person to a corporate office is merely voidable and not void. (Kidd on Corporations, 9; Crawford agt. Powell, 2d Burr, 1,013 ; Rex., agt. Bridge, 1 Maule and Selwin, 76.)

It seems to me quite clear that this injunction was improvidently granted, and that the officers of a corporation cannot be thus summarily removed from office by a court of equity. But it was doubtless the duty of the said inspectors to obey the injunction as they did. Ho allegation or suggestion is made in the complaint that the said Hand, Haskell and Lathrop, except that they were not stockholders, were not competent and proper persons to act as inspectors. The injunction appeared to have been signed by the judge who granted it on the 6th of September. The use that was made of this injunction is, I think, the more serious ground of objection to it. If it had been procured and served a day or two at least before the time fixed tor' the election,'it could have done no particular injury, or created any especial surprise to. affect the election. It was in the possession of one of the attorneys and counsel acting for Mr. Fisk on the evening of the 6th of September. It was talked about in the meeting held the same evening at the Delevan house by Mr. Fisk and his friends, and one of the resolutions drawn up for adoption at the stockholders’ meeting to be held the next day, stated that the inspectors had been enjoined, and the whole scheme of operations of Fisk and his party, for the next day, and the necessity for a stockholders’ meeting, depended upon that fact, and the

“ I set out for the offices of the Albany and Susquehanna railroad in a carriage. At about twenty minutes past 11 on the morning of that day, on my way there I saw two inspectors of election whose names I knew then, but cannot now recall, and I saw a gentleman,serve them with a paper which I had given to him, and which included an injunction against their serving as inspectors on that day.”

And he further said that be then went immediately to the office, and when he got into the directors’ room it was about half past 11.

The procuring, keeping back this inj unction, and serving it at this time, and in the manner stated, was an obvious and designed surprise upon the great body of stockholders of the corporation. They had no reason to expect that said inspectors would be enjoined, and therefore had no occasion to assemble promptly to provide for the exigency created by their removal or declination to act, by the choice of new inspectors in a stockholders’ meeting, It cannot be considered otherwise than a scheme contrived and devised to take an unfair and improper advantage of the stockholders not in the interest of Mr. Fisk in respect to the conduct of the said election. It was suggested on the argument that a primary reason for objection to these inspectors and procuring of said injunction was that the chairman of the board of inspectors, Mr. Hand, was one of the counsel for Mr. Eamsey. Apparently this was a good objection, for it is quite important that inspectors of such election where there is controversy and contest, should be impartial and disinterested men, for they act in part judicially as well as min

The next judicial proceeding designed to operate upon the election as claimed by counsel on the trial, was the commencement of a suit in the name of the railroad company against Joseph H. Ramsey, Henry Smith and William L. M. Phelps, in which action an order for their arrest was obtained in the sum of. $25,000.

By whose authority this suit was commenced does not distinctly appear. It was, however, commenced by the same attorneys who had commenced all the previous suits for the parties acting in concert with or in furtherance of the interests of Mr. Fisk. The. order for their arrest was obtained on the 6th of September, and taken to Albany the same afternoon. The complaint was produced and proved on the trial, but by some mistake was not left with me, but I understand that the cause of action for which this order of . arrest was granted was, that the defendants were charged with taking and carrying away from the office of the company certain books of the corporation. These books certainly belonged in the office of the company, and their removal could not be justified except upon the just apprehension on the part of the officers of the company that they were not safe in the office, and werethere liable to be seized and taken away by force or fraud and without right. They were in fact removed with the knowledge and assent of the president and treasurer of the company and upon the advice of their counsel, on the evening of the 5th of August, the

On the morning of the 6th of August it appears that Eobert H. Pruyn was put in possession of the office of said railroad as receiver, and thereafter until the appointment by the Governor of Eobert L. Banks, on the 13th of the same month, as executive and financial agent to take charge of the road and operate the same as such receiver, had the lawful custody of the books and papers of said corporation, and it appears that he was acting in concert and sympathy with Mr. Eamsey and the said officer and persons who took away the said books, and that Phelps the treasurer retained under him, had access to the books and made entries in the same from time to time under the direction or authority of said Pruyn. The appointment of Mr. Banks as executive and financial agent upon the request and stipulation signed by the parties, and delivered to the Governor, gave him the right to the possession and control of the said books and virtually superseded both receivers. So that when this suit was commenced neither of these receivers were entitled to the custody of the said books, or to bring any suit for their conversion or their non-delivery to the agents of the Governor. The books were in fact returned to the office on the night of the 6th of September and put under the control of Mr. Banks, so that when the suit was actually commenced by the service of the summons and complaint, they were in the actual custody of the plaintiff, if the agent of the Governor properly represented the corporation. Fisk And Courter had clearly no right to bring the action, as between them and Pruyn, who had been previously put in possession of the offices, under the order and authority of this court.— Except for the appointment of Mr, Banks as agent of the Governor the custody and control of these books with all the other property of the corporation had been assumed by this court and committed to its receiver, Mr. Pruyn, and the authority of Fisk and Courter was in abeyance at least until the

This order of arrest, thus procured and thus executed, could have no other object or purpose on the part of those who instigated and directed it, than to hinder and embarass Mr. Ramsey and his friends among the stockholders, and prevent them from participating in the stockholders’ meeting and possibly in the election. Some difficulty was found,

I come to the remaining branch of the evidence tending to establish the fraudulent combination and conspiracy imputed to Mr. Fisk and his associates in respect to the stockholders’ meeting held in the directors room, I mean the preoccupation of said room before the time fixed for the election, and by persons not stockholders of said company.

Mr. Herrick, the vice president of the company, testifies that the superficial area of the room called the directors room, deducting for table and desk, is 309 square feet, and that estimating three square feet for a man the said room would hold 103 men. This estimate does not exclude chairs, and it appears that numbers were seated in chairs. It clearly appears that this room began to be filled preparatory to this meeting at about half-past 11 o’clock.

Mr. Harris testified that he went to the office of the railroad company at about half-past 11, accompanied by Mr. James Fisk, Judge Parker, and Mr. Field; that they arrived there soon after half-past 11, and went immediately to the directors’ room, which they found about half full of men ; that he recognized many persons in the room at the time they entered, and then came others he did not know.

Mr. Church testified that he arrived at the room about 21 minutes before 12 o’clock; that he went directly to the directors’ room and found it partially filled with people, among them some of our lawyers and inhabitants and other parties residing on the line of the railroad, and parties connected with the road, and named twenty-eight persons then present whom he then recognized. It also appeared from the testimony of this witness that a meeting was held at the Delevan house the evening previous, (the 6th of September,) composed of Mr. Fisk, Mr. Field, Mr. Harris, Mr

It clearly appears that after the arrival of Mr. Fisk and his counsel and friends among the stockholders, the room rapidly filled, and that when the meeting was called to order by Col. North, at about 15 minutes before 12, it was quite full, and by 12 o’clock it was densely packed. And I think it is clearly established that of the persons so filling and occupying said room from 50 to 60 at least were imported, came or were brought there upon the employment of James Fisk or his agents from the city of New York, who were not stockholders in said company, many of whom were of a rough, low class of men, such as in common parlance would doubtless be classed among the roughs and fighting men of that city. These men came together in a railroad car, and arrived in Albany early on the morning of the 7th, and were fed and controlled and taken to the said room under the lead of men confessedly acting in the employ of Mr. Fisk, and many of them furnished with proxies that they might vote, as the counsel for Mr. Fisk avowed on the trial, that all viva voce votes might be taken in the meeting.

The testimony of" Mr. Hendricks seems to me to give a fair representation of the actual condition of things in this room at and before the time of the meeting there held. He testified that he arrived at the said office about half past 11 o’clock—that he went first to the directors’ room—that it was then full, in the eastern part overflowing. I had, he said, great difficulty in getting to the front. He was asked —By what class of persons? And answered they were strangers to me, and the hardest set of men I ever saw in my life. I should think seven-eighths of them were of that character. “The room was very full. I think any reason

Orange Stevens, a witness called in behalf of the Fisk side of the controversy, testified that he was a passenger conductor on the Erie Railroad; that he came up from New York on the same train with these men—that he gave about twenty on them proxies in a restaurant, near the depot of the Susquehanna railroad. Another witness, Pollard, came from New York with these men, and gave some of them proxies in the office of the railroad, and some in the restaurant. Saw them march into the room under the charge of four different persons, each having charge of a set or file of five or six of the men, and said the room was half full when they went in. The whole evidence upon this point, I think, fully establishes that this room at and about 12 o’clock was so fully packed with this description of men, with conductors on the Erie road, and other agents and retainers, employees of Mr. Fisk, or persons under his control and acting in his interest, together with other persons comprising stockholders, friendly to Mr. Fisk, and others acting in concert with him, as utterly to exclude a large portion of the stockholders attending and entitled to take part in a stockholder’s meeting, at that hour, from access to said room, and preclude them from an open, free and fair, and safe participation in the pro ceedings of such a meeting. The importation and crowding

Upon the whole evidence upon this branch of the case, I think I am bound to find as matter of fact that there was a preconceived scheme, combination or conspiracy to carry the election of directors appointed to be held at the time and place aforesaid, by the use and abuse of legal process and proceedings, and by efforts and contrivances to prevent a fair election of inspectors at a stockholders’ meeting, made necessary by the inj unction against the inspectors elected in 1868, procured, used and served as above stated with the concurring preoccupation of the room where such meeting was to be held, with such number of persons as utterly precluded a free and fair meeting for such purpose.

And I am accordingly bound to find as matter of fact and of law, that the election held by Hamilton Harris, Joseph Bush, and James Oliver acting as inspectors, was therefore irregular, fraudulent and void.

There is still another subject for consideration in respect to this election. It was held in distinct violation and disregard of two injunctions issued out of this court and duly served upon the said inspectors. One inj unction was issued in the suit of David Gfroesbeck and others agt. Jay Gould, James Fisk, jr., and others.

This injunction required the defendants, Hand, Lathrop and Haskell, inspectors of election, their successors, sub

In the People agt. Davis, (5 Selden, 262) Judge Johnson in giving the opinion of the court of appeals, said that the principle is of universal force that the order or judgment of a court having jurisdiction is to be obeyed no matter how clearly it may be erroneous. It is only when it acts without authority that its orders are regarded as nullities— they are then not voidable, but simply void.

This election would doubtless have been set aside on a summary application to this court, pursuant to Bevised Statutes, part 1, section 5 chapter 8 title 4, on the ground that it was held in distinct violation of this injunction; and I think in this proceeding, where the regularity of the election is in question, the fact that said election was held in violation of an injunction must be considered.

The argument that Harris, Bush and Oliver were officers de facto, and the election held by them is valid, upon that ground, is untenable.—There can be no such officer as an officer de facto, as against the people, in an action at the suit of the people to try the title to the office. The doctrine in respect to officer de facto only applies to and in favor of third persons, and to protect innocent parties who have trusted to the apparent title of an officer.

(Ex parte Wilcox, 7 Conn. 402 ; Boorman agt. Hallidag, 10 Paige, 228; People agt. Alturn, 8 How., 363 ; Meeks agt. Ellis, 2 Barb., 822 .)

These views would seem to make it unnecessary for me to go further in the examination of the great mass of evidence given and received in the case. Much of it was given" and received upon the assumption that I might find it necessary" to order a new election, and in that event I must determine who would be entitled to vote at such election.

But as the court in this class of questions will seek to subserve as far as compatible with the law of the case, the interests of the corporation, and for that purpose will look to see how the interests of the majority of the stock is to be affected by its decision, I will proceed to state my

It appears that at the Harris poll there were cast 13,400 votes, and at the Snow poll, 10,742. Transfer the 3,000 shares improperly voted upon by Fuller from the Harris to the Snow poll, and it would give the majority to the latter poll. From the Harris vote 600 should also be deducted, because the vote was given by commissioners who had previously been removed from office and their places filled by new officers. The certiorari brought to review the proceedings, did not restore the old officers and they had no right to cast the vote of the town. Three hundred shares should also be deducted for the town of Duanesburgh, on the ground that this court at general term had adjudged that said town does not own any stock in said railroad corporation, and was not a stockholder. Without going further into detail on this question, I will simply state that the subscription for the 9,500 shares by Hendrick, Hunt and others, I think, made them lawful stockholders upon such stock of the said corporation. They paid the ten per cent, upon it, and cannot avoid the payment of the balance due upon such subscription. The company has had the ten per cent., and the subscription was made in the regular subscription book in the hands of the officers of the company, and created an absolute legal obligation, to take the stock and pay for the same. (Black River & Utica R. R. Co,, 25 N. Y., 208 ; Ogdensburgh agt. Woolley, 1 Keys, 120.

The votes upon this stock would have given a great preponderance to the Ramsey set of directors on a single poll. It seems to me quite clear then that if there had been a single poll and the stockholders had voted and their votes been received according to the stock, ledger and transfer books, as they stood on the 7th of August, including all such entries and transfers of stock as the treasurer did make or was bound to make, and which he would have been directed by mandamus to make if he had refused, the ticket headed

And if on the contrary the result had been otherwise, and such result had been brought about by the reception of the votes given by Fuller and the rejection of the votes of the true owners of that stock, and the reception and rejection of other stock illegally, including the 9500 shares subscribed for by Hendricks, Hunt and others, this court would have been bound upon summary application to set aside such election. (Downing agt. Potts, 3 Zabriske, 66 ; Ex parte Murphy and others, 7 Cowen, 153; In the matter of Chenango Mutual Insurance Co., 19 Wend., 635 .)

The defendant Jonathan B. Herrick, was not lawfully removed from his office of director by the common council of Albany. At the meeting of said common council it appears that but one member of the board voted for his removal, and one member voted in the negative, and the presiding officer declared the resolution carried. This was clearly an error, and said Jonathan B. Herrick remains and is a lawful director of said railroad company for the city of Albany.

Judgment must therefore be given according to these views, adjudging that the Fisk set of directors were not duly elected, and that the Bamsey set were duly elected, and are the legal and lawful directors of said corporation ; and further adjudging that the people recover costs in the action against the corporation, the Albany and Susquehanna railroad company; and that the complaint be dismissed as against the defendants, Jonathan Herrick and Walter H. Burns, without costs; and that all the suits mentioned in the pleadings be discontinued by the plaintiffs on both sides without costs ; and the receivership of Pruyn, Courier and Fisk be vacated and set aside.

The judgment will further direct that the thirteen defendants who are hereby declared to have been duly elected directors of said corporation headed by J. Pierepont Morgan, and also the defendants, David Groesbeck, Daniel T.

And it will be further ordered that the said directors so held to be duly elected be let into immediate possession of said railroad, and that the receiver transfer to them all the property and assets in his hands belonging to said corporation, retaining from the moneys in his hands all proper allowances for fees, expenses and other charges to be adjusted by said referee.

In conclusion, I regret that other duties forbid the devotion of greater time and reflection to the examination and decision of this most important cause. It came an exotic to this district where the judges are full of labor and where the people have no interest in the controversy except such interest as all good citizens feel in the welfare of the state and in the maintenance of law, order and good government. It is impossible that any judge could enter upon the trial of a cause of such magnitude without a deep sense of oppression from the weight of the great responsibility involved in its decision. Including the time consumed in its trial .and required for the examination of the case, it has occupied a month of my time and diverted me from my particular local duties. My duty is now discharged and a sense of relief arises from the fact that my decision is not necessarily conclusive upon the parties and if 1 have erred in judgment or opinion the error is not irreversible.