145 U.S.

409
12 S.Ct. 969
36 L.Ed. 755

HANCOCK
v.
LOUISVILLE & N. R. Co. et al.
SHELBY R. CO.
v.
LOUISVILLE & N. R. CO. et al.
May 16, 1892.

B. F. Buckner, for appellants.

J. C. Beckham, for appellees.
Mr. Justice BREWER delivered the opinion of the court.

These two cases were argued together, the object of attack in each being the
same, to wit, a lease made by the Shelby Railroad Company, on July 16, 1879,
to the Louisville, Cincinnati & Lexington Railway Company, and subsequently
transferred by the latter to the Louisville & Nashville Railroad Company. Each
seeks the same relief,the cancellation of that lease. Hancock, the appellant in
one case, was a stockholder in the Shelby Railroad Company, the appellant in
the other, and sues for the benefit of that company, the allegations of his bill
being intended to bring the case within the requirements of equity rule No. 94.
His bill was filed on the 3d day of December, 1886, and in it he alleges, in
substance, that he notified and requested the Shelby Railroad Company to
institute an action for the cancellation of said lease, but that the directors of said
company, at a meeting held to consider the matter, resolved not to institute such
action. He charges that the lease was made without legislative authority, and
was therefore ultra vires and void; and also that it was not ratified by a majority
of the stockholders of the Shelby Railroad Company. The Shelby Railroad
Company filed its bill on the 4th day of August, 1888, but rested its attack on
the validity of the lease, on the ground that it had not been ratified by a majority
of its stockholders.

In disposing of these cases, therefore, two questions must be considered: First,

In disposing of these cases, therefore, two questions must be considered: First,

was there legislative sanction for such a lease; and, second, if so, was it ratified
by a majority of the stockholders of the Shelby Railroad Company? With
reference to the first: On January 22, 1858, the legislature of Kentucky passed a
general statute, which, in terms, gave to all railroad companies in the
commonwealth 'power and authority to make with each other contracts of the
following character: * * * (2) For the leasing of one company to another,
provided the road so leased shall be so connected as to form a continuous line: *
* * provided, however, that all such contracts shall be approved by a majority
in interest of all the stockholders of each of the contracting companies, at some
stated or called meeting of the same.'

It is claimed that the lessor's and lessee's roads do not form a continuous line,
within the meaning of this statute, and that, therefore, the condition upon which
a valid lease could be made was wanting. The main line of the lessee's road
extends in a northeasterly direction from Louisville to Cincinnati. At
Anchorage, about 12 miles east of Louisville, the Shelbyville road touches it.
At the time of the lease the latter road was completed from the place of junction
to Shelbyville, a distance of about 18 miles; the general course being a trifle
south of east. There was a physical connection between the two roads at
Anchorage,the latter being the western terminus of the Shelbyville road.
From this place the main line of the lessee road extends northeasterly, and the
Shelbyville road southeasterly, making two forks of the letter 'V.' Shelbyville is
nearly due east from Louisville, and the Shelbyville road, together with the 12
miles of the lessee's road, makes a continuous line between Shelbyville and
Louisville, in a route about as straight as the average railroad. But Anchorage is
not a terminus of the lessee road, and the contention is that, under the statute,
the leased line must touch one of the termini of the lessee's road, so as to make
an extension of it. As counsel expresses it: 'Where two roads are in such
connection or juxtaposition with each other as that the leasing of one by the
other will extend or lengthen the line and create a new terminus, the act applies,
and it applies only in such a case.' In reference to this contention, the learned
judge of the circuit court observed: 'This construction would authorize the
Shelby Railroad Company to lease the L., C. & L. Railroad from its junction
near Anchorage to Louisville, but not the L., C. & L. R. R. Company to lease
the Shelby railroad from the junction to Shelbyville.'

We think this suggestion pertinent, and that the contention of appellant

Hancock cannot be sustained. It is enough that by the lease the connected roads
form a continuous line, and it is not essential that the leased line be an
extension from either terminus of the lessee's road. The evil which was intended
to be guarded against by this limitation was the placing of parallel and
competing roads under one management, and the control by one company of

the general railroad affairs of the state through the leasing of roads remote from
its own, and with which it has no physical or direct business connection. It was
not intended to prevent a company with a long road, like the lessee company,
from leasing branches by means of which it establishes continuous lines from
their several termini to each of its own. By this lease a direct and continuous
line from Louisville to Shelbyville was created, and neither the letter nor the
spirit of the statute was thwarted.
5

But the chief reliance of counsel is on the other question. The Shelby Railroad
Company is a corporation created by an act of the general assembly of
Kentucky, of date March 15, 1851. That act was amended March 10, 1854,
February 15, 1858, and February 3, 1869. By the last amendment a part of
Shelby countythe boundaries being specifically prescribed in the actwas
authorized to subscribe $300,000 to the stock of the company, if a majority of
the votes cast at an election should favor such subscription. The result of the
election was to be entered on the records of the county court, and, if favorable,
the county judge was to cause the subscription to be made in the name of said
portion of Shelby county, and to issue bonds in its name in payment thereof. In
pursuance of this act an election was had, and, being in favor of the
subscription, it was made, and bonds to the amount of $300,000 were executed
and delivered to the railroad company on June 1, 1869. The original charter
authorized the county of Shelby to subscribe for stock, the subscription to be
made payable at such times and upon such terms as should be agreed upon,
with no provision for the issue of the bonds, but with authority to levy and
collect taxes for the purpose of paying such subscription. Section 26 of the act
reads:

'That each and every person who pays any part of said tax shall be entitled to
his pro rata share of said stock in the respective companies authorized and
contemplated in this act, and into the treasury of which said tax is paid, and
shall be entitled to demand and receive a certificate so soon as he shall have
paid for a full, half, or quarter share, or shall produce transfers from those who
have paid portions, so as to entitle him to a full, half, or quarter share.'

The amendment of 1869, which authorized the issue of bonds, also directed a
tax to pay the interest and principal of such bonds; and, in section 9, provided:

'The several counties and portions of counties shall not vote the stock for which
certificates may be issued to the taxpayers, but the same shall be voted by the
individual stockholder.'

After the issue of these bonds, and on March 11, 1870, an act amending the

After the issue of these bonds, and on March 11, 1870, an act amending the
charter was passed, section 3 of which is as follows.

10

'That when any county, or part of a county, city, town, or precinct, shall have
delivered its bonds in payment for stock subscribed, it shall be entitled to
representation and to vote the amount of such stock in any meeting of the
stockholders of said company. The stock owned by a county shall be
represented by the county judge and all of the justices of the peace of the
county; stock owned by a part of a county or a precinct, by the county judge
and by the justices of the peace residing in the district or precinct taxed.'

11

And on February 26, 1873, a further amendment provided that the part of
Shelby county which subscribed stock and issued bonds should have 'the
corporate name of 'The Shelby Railroad District of Shelby County,' and by that
name may sue and be sued.' Now, the bills allege that $267,775 of stock was
voted at the meeting authorizing the lease, by the representatives of the 'Shelby
Railroad District of Shelby County,' under the authority of the last two acts of
the general assembly, and that without such vote the majority of the
stockholders did not approve the lease. At that time this amount of the bonds,
issued in payment of the subscription, was outstanding. It is true there had been
an exchange of the old for new bonds at a lower rate of interest, but the
principal of the indebtedness to that amount still remained. The question,
therefore, is whether this stock was properly voted by the representatives of the
'Shelby Railroad District of Shelby County.'

12

This precise question was presented to the court of appeals of Kentucky in a

consolidated action to which certain taxpayers, the Shelby Railroad Company
and the 'Shelby Railroad District of Shelby County,' were parties, (Kreiger v.
Railroad Co., 84 Ky. 66,) and by that court decided in favor of the right of the
district to vote the stock. An attempt was made to have the judgment of that
court reviewed by this, but the case was dismissed for want of jurisdiction, on
the ground that no federal question was involved. Kreiger v. Railroad Co., 125
U. S. 39, 8 Sup. Ct. Rep. 752. While that case may not work an estoppel by
judgment by reason of a difference of parties, it is an authority to be respected,
if not followed.

13

But, passing that matter, what are the merits of these cases? The contention is
that, by the acts of 1851 and 1869, rights in the stock were vested in the
taxpayer, which could not be divested after the issue of the bonds, though
attempted to be, by the legislature, in the acts of 1870 and 1873, or, as more
fully expressed in the brief:

14

'The acts of 1851 and 1869 confer on the individual stockholders rights which
are impaired by the acts of 1870 and 1873; that is, that the exclusive right to
vote at stockholders' meetings, and the sole right to receive dividends given by
the acts of 1851 and 1869 to the individual stockholders and those who should
become so by the payment of taxes, is impaired by the acts of 1870 and 1873,
which grant the right to the Shelby Railroad District of Shelby County to vote
at stockholders' meetings.'

15

With respect to the matter of dividends, we have, in this case, no need of

inquiry, The single question is as to the right to vote this stock. The court of
appeals held that a corporation was in fact created by the act of 1869, granting
authority to a defined portion of Shelby county to subscribe stock and vote
bonds; that that corporation, by virtue of the subscription and issue of the
bonds, became the owner of the stock; and that the acts of 1870 and 1873
simply prescribed who should represent the corporation, and by what name it
should be known. Counsel criticise this ruling severely, asserting that
corporations are never created by implication, and that there is in the act of
1869, in terms, no attempt to create one. But this is a matter of a purely local
nature. A corporation may be formed in any manner that a state sees fit to
adopt; and when the highest court of a state decides that, by certain legislation,
a corporation has been created, such decision concludes not only the courts of
the state, but also those of the United States. It is a matter over which we have
no review, and in respect to which the decision of the state court is final. If it
were an open question, it would be difficult to avoid reaching the same
conclusion. By the act of 1869 this prescribed portion of Shelby county was
authorized to issue bonds and subscribe stock. The bonds when issued were not
the obligations of Shelby county, nor of the individual taxpayers; and still there
must be some debtor. That debtor was this portion of Shelby county. Giving to
it power to issue bonds and create indebtedness is the creation of an entity with
power to act, and, if this entity has power to create a debt, it becomes subject to
suit. That this entity was not, in terms, named a corporation, is not decisive. It is
enough that an artificial entity was created, with power to exercise the functions
of a corporation. It was, though not named, a corporate entity, and the acts of
1870 and 1873, as well said by the court of appeals, simply designate who
should act for this corporate entity, and give it a name. As a corporate entity, it
issued bonds, and subscribed for the stock. It became thereby the owner of the
stock, and, as owner, it was entitled to exercise all the rights and privileges of
ownership, including the right to vote the stock, unless the legislature creating
it and prescribing its powers had, in terms, vested such control of the stock in
other hands.

16

But it is said that the acts of 1851 and 1869, in substance, gave to each taxpayer

at the time of paying his tax an equal amount of the stock; that an amount of
taxes had been paid prior to this lease nearly equal to the entire issue of the
bonds; and that, therefore, there was substantially no stock left in the district
which it had a right to vote. But the original act authorized no bonds; and did
not provide for the payment of the subscription by the issue of bonds, but by
taxes levied in amount and at times necessary to pay it according to its terms.
When the taxpayer paid his taxes he, in effect, paid to the railroad company a
proportionate amount of the subscription; and the provision was, in substance,
that he should take the stock which he had then paid for. There was, therefore,
an equality between the stock and the taxes, and the county was simply an
agent to collect the taxes and pay them over to the company, and receive the
stock and transfer it to the taxpayer. But the act of 1869 authorized a radical
change; and this newly-created corporation was not merely the conduit through
which money passed from the taxpayer to the company, but it became an
independent subscriber, making its own subscription, and issuing its own bonds
in payment therefor. Those bonds represent and are the equivalent of the stock,
and until the taxpayer pays those bonds he bas equitably no right to the stock. It
is true the terms of the original charter were not changed by the amendment of
1869; but to hold that the parties thus far paying taxestaxes which mainly
have gone to the payment of the interest on the bondsare entitled to the stock
works this unreasonable result: Though $300,000 and over of interest has now
been paid, the bulk of the bonds remain outstanding, and are yet to be paid, as
well as several hundred thousand dollars of interest. Shalf the whole issue of
stock be absorbed by those who pay the first interest on the bonds, leaving to
those who thereafter pay taxes for account of future interest and to discharge
the principal no right to and stock; or shall the railroad company be compelled
to issue stock in excess of the $300,000? Nothing of the latter kind is provided
for; nothing to indicate that the district can, by extending the bonds and paying
interest, compel an additional issue of stock. All the stock that the railroad
company was called upon to issue by the terms of its contract was the
$300,000, and that was paid for by the bonds; and the taxpayer's equity in the
stock only arises as he pays the bonds, and not as he simply pays interest on
them.
17

The character of the transaction contemplated by the act of 1851 and the
difference created by the amendment of 1869, as above indicated, is made
clearer by section 20 of the former act, providing 'that said company shall not
issue certificates of stock unitl the same shall be paid for.' In other words,
payment of taxes paid the subscription, and of course worked a right to the
stock then paid for. This provision was not changed by the amendment of 1869,
but the subscription made by the district was paid for at the time by the issue of
its bonds; and, having been paid for, it was the duty of the company to issue its

stock; and to whom should it be issued but to the party who had made the
payment, to wit, the district? Having paid for and owning and possessing the
stock, who should vote it? Obviously the owner; and its right to vote should not
be diminished until and except when the amount which it has paid for the
bonds is made good to it by the taxpayers. Such was the construction placed
upon this matter by the court of appeals; and we think that construction,
notwithstanding some little obscurity in the language of the various statutes, is
correct.
18

With reference to the suggestion made by the counsel for the appellees that the
delay in bringing these suits is such laches as defeats any rights which existed in
the first instance, we refer to the case of St. Louis, V. & T. H. R. Co. v. Terre
Haute & I. R. Co., 145 U. S. , 12 Sup. Ct. Rep. 953.

19

The decrees are affirmed.