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and sometimes as the absolute owner, but instance, one of purchase and sale, it is denied the sense that in either view the combina-that the equitable title vested, because, as tion was illegal. For the purposes of that alleged in the second amended bill, there suit it was enough that in any capacity the was an agreement by the promoters of the Securities company had the power to vote Securities company, carried out by that the railway shares and to receive the divi- company, that the latter should "acquire dends thereon. The objection was that the and hold the shares of said railway stocks, exercise of its powers, whether those of own- as aforesaid, as custodian, depositary, or er or of trustee, would tend to prevent com- trustee, and to issue in exchange therefor petition, and thus to restrain commerce. its own share certificates upon said agreed basis." And here, again, we concur in the views of the circuit court of appeals as expressed by Judge Dallas.
Some of our number thought that, as the Securities company owned the stock, the relief sought could not be granted; but the conclusion was that the possession of the power, which, if exercised, would prevent competition, brought the case within the statute, no matter what the tenure of title
"The agreement thus set up is not in accord with the documentary evidence which has been referred to, and to establish its existence a clear preponderance of proof should at least be required; whereas, in our opinion it conclusively appears that no such agreement was ever made. Mr. Harriman himself has distinctly testified that the Northern Pacific stock in question was sold; that the transaction was not an exchange; that he, principally, negotiated the sale; and that there was not attached to the negotiations any condition except as to price. And to the same effect is his affidavit in this case, in which he deposed that he was urged by Messrs. Morgan & Company to dispose of the Northern Pacific stock held by the Oregon Short Line Company, and that 'they further stated that, upon the organization of the proposed holding company,' not that it would take as custodian or trustee, but that 'they would be prepared to purchase the holdings of stock of the Northern Pacific owned by the Oregon Short Line, and pay therefor in the stock of the holding company.' These statements of that one of the complainants having most knowledge of the subject, confirmed, as they are, by the other evidence, make it quite impossible to believe that the railway stock was received by the Securities company merely as a custodian or depositary. The only agreement upon which it was transferred was an unqualified agreement of sale, and the fact that the design with which the Securities company was organized has been compulsorily abandoned has not devested, or in any way affected, the absolute title which, by executed contract of purchase, it acquired. Undoubtedly, it was anticipated by the complainants, as by all concerned, that the
at an agrgegate price of $91,407,500, payable, as to $82,491,871 thereof, in the fully paid-up and non-assessable shares of the capital stock of this company at par, and, as to $8,915,629, in cash.' It is obvious that this resolution contemplated a 'purchase,' and not a bailment or trust; and that it accurately stated the nature and terms of the contract which was actually made by and with the Securities company is unequivocally shown by what was done in pursuance of it. The railway shares were unconditionally assigned to that company. The price specified in the resolution was paid by it, and this payment was made partly in cash and partly in shares of its own stock, for which corporate certificates in the ordinary form were delivered and accepted The complainants received dividends upon the stock that was issued to them, which were paid out of the general funds of the Securities company; and by its indenture to the Equitable Trust Company of New York the Oregon Short Line Railroad Company irrefutably asserted its own-rights ordinarily incident to the ownership ership of the Securities company stock which it thereby pledged."
And the Securities company sold 75,000 shares of its stock for $7,522,000 cash, "used," as stated in the bill, "for the purchase of other property and for corporate purposes."
of stock, including the right to vote and to receive dividends, would be exercisable as to this stock by the Securities company. But expectation is not contract, and therefore the frustration of this anticipation cannot be said to have occasioned a failure of consideration. The only consideration agreed But, assuming that the transaction was upon was payment of the price, and admitin form, and at least prima facie in sub-tedly that payment was made.”
Complainants' counsel say, in respect of Mr. Harriman's testimony that the transaction was an unconditional purchase and sale, that he only swore to his opinion on a question of law. This will hardly do when applied to testimony as to what was said and done in conference with the alleged promoters of the Securities company. When Mr. Harriman testified that he attached to his negotiations in the sale of Northern Pacific stock no other condition than that of the price, and that the transaction was completed, how can complainants be permitted to deny that this was a statement of fact? And how can the establishment of the contract and its terms as embodied in the resolutions of November 15, 1901, approved at the succeeding meeting by the vote of Mr. Harriman, and which appeared to be, and were testified to by Mr. Hill, President of the Securities company, as constituting, the only contract which was made and authorized, be overthrown in the absence of any evidence to the contrary?
that end were ratified by a vote of more than two thirds of the Securities shares.
By the transfer of the Northern Pacific shares and the payment therefor as agreed the contract was executed, and the implied obligations resulting from the relation of corporation and stockholder alone remained executory. And when the Securities company resolved to distribute these railway shares ratably among all its stockholders, it did this in performance of its contract with them, and not in repudiation of it. It is the complainants who are seeking the determination and repudiation of the contract. Their final contention in that regard is that they are entitled to a decree rescinding the contract of purchase and sale, and directing the return of the railway shares parted with by them thereunder, because of the illegality of the transaction as adjudged in the Federal courts.
And this in defiance of the settled rule that property delivered under an illegal contract cannot be recovered back by any The consideration received by complain- party in pari delicto. "The general rule, ants consisted of money and Northern Se-in equity, as at law," said Mr. Justice Gray curities stock certificates. Those certificates were in common form, and each was a muniment of the holder's title to a proportionate interest in the corporate estate vested in the corporation. By the provisions of the corporation act of New Jersey, and its certificate of incorporation, the Securities company had power to acquire and to hold, and at any time to sell, the shares of other corporations. And under that act it had power, in the discretion of its directors and of the holders of two thirds of its capital stock, at any time, on notice, to dissolve and to wind up the corporation and distribute its assets. Complainants subjected themselves to this power in accepting the shares of the Northern Securities company, and their unqualified transfer of their railway stock was inconsistent with any obligation of the Securities company to retain the railway shares for any particular period.
in St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co. 145 U. S. 393, 36 L. ed. 748, 12 Sup. Ct. Rep. 953, "is, In pari delicto potior est conditio defendentis; and therefore neither party to an illegal contract will be aided by the court, whether to enforce it or to set it aside. If the contract is illegal, affirmative relief against it will not be granted, at law or in equity, unless the contract remains executory, or unless the parties are considered not in equal fault, as where the law violated is intended for the coercion of the one party, and the protection of the other, or where there has been fraud or oppression on the part of the defendant. Thomas v. Richmond, 12 Wall. 349, 355, 20 L. ed. 453, 456; Congress & E. Spring Co. v. Knowlton, 103 U. S. 49, 26 L. ed. 347; Story Eq. Jur. § 298. When the parties are in pari delicto, and the contract has been fully executed on the In acquiring the Securities stock, com- part of the plaintiff, by the conveyance of property, or by the payment of money, and plainants acquired the ordinary rights of has not been repudiated by the defendant, stockholders in New Jersey business corpo- it is now equally well settled that neither a rations, including the right to receive dividends, and to share in the distribution of court of law nor a court of equity will asthe assets of the corporation on its disso- sist the plaintiff to recover back the proplution, or of any surplus of assets on reduc-erty conveyed or money paid under the contion of its capital stock. In view of the decree of the circuit court for the district of Minnesota in the government's suit the continued ownership of the railway shares became useless to the stockholders of the Securities company, and accordingly the directors decided to reduce the capital stock and distribute the surplus of assets created by that reduction, and the resolutions to
tract. Thomas v. Richmond, 12 Wall. 349, 355, 20 L. ed. 453, 456; Ayerst v. Jenkins, L. R. 16 Eq. 275, 284."
That was a suit in equity by the maker of an unauthorized lease of a railway and franchises, against the lessee, to enforce an attempted repudiation of the lease by the former, on the ground of the illegality. The lease was for nine hundred and ninety-nine
shareholders; and it was not until after March 22, 1904, when defendant's board of directors resolved upon a ratable distribution, that complainants undertook to change an election already so pronounced as to be irrevocable in itself in view of the rights of others.
years, of which but a few years had elapsed | 824,000 shares to the Equitable Trust Comat the date of the attempted rescission. pany; notwithstanding the decree of April The illegality of the lease and the conse-9, 1903, they stood upon their rights as quent breach of public duty were manifest, but the right of the lessor, therefore, to maintain the suit was denied by this court. In the present case complainants seek the return of property delivered to the Securities company pursuant to an executed contract of sale on the ground of the illegality of that contract, but the record discloses no special considerations of equity, justice, or public policy, which would justify the courts in relaxing the rigor of the rule which bars a recovery.
The circuit court decrees put at rest any question that the ratable distribution resolved upon was in violation of public policy.
And it is clear enough that the delivery to complainants of a majority of the total Northern Pacific stock and a ratable distribution of the remaining assets to the other Securities stockholders would not only be in itself inequitable, but would directly contravene the object of the Sherman law and the purposes of the government suit.
The Northern Pacific system, taken in connection with the Burlington system, is competitive with the Union Pacific system, and it seems obvious to us, the entire record considered, that the decree sought by complainants would tend to smother that competition.
While the superior equities, as against complainants' present claim, of the many holders of Securities shares who purchased in reliance on the belief that they thereby acquired a ratable interest in all of the assets of the Securities company, are too plain to be ignored.
The illegal contract could not be made legal by estoppel, but the ownership of the assets, unaffected by a special interest in complainants, could be placed beyond dispute on their part by their conduct in holding the Securities company out to the world as unconditional owner.
And, without repeating in detail what has been already set out, it is plain that right of rescission of the executed contract of November 18, 1901, even if rescission could have otherwise been sustained, had been lost by acquiescence and laches at the time this bill was filed.
We regard the contention that complainants are exempt from the doctrine in pari delicto because the parties acted in good faith and without intention to violate the law as without merit. With knowledge of the facts and of the statute, the parties turned out to be mistaken in supposing that the statute would not be held applicable to the facts. Neither can plead ignorance of the law as against the other, and defendant secured no unfair advantage in retaining the consideration voluntarily delivered for the price agreed.
Perhaps it should be noticed that the bill sought the return of two parcels of Northern Pacific common stock, the 370,230 shares delivered to the Securities company, November 18, 1901, and the 347,090 shares received December 27, 1901, from the Northern Pacific company on the retirement of preferred stock.
Early in 1901 the Hill-Morgan party held a majority of the common stock, and had asserted the intention to retire the preferred stock, "without," as Mr. Harriman testified, "affording the holders of the preferred stock the right to participate in any new securities that might be issued."
With full knowledge of that intention, the proceedings of the two companies followed in November, 1901, and the absolute and unconditional sale and purchase, as we hold the transaction to have been.
We find no evidence of any express agreement that complainants should be entitled to the new common stock, and it was certainly not the natural increase of the old stock, but the result of the exercise of the right of subscription. The purchase by the Securities company was on its own account, and not in trust, and cannot be disturbed because of illegal purpose at the clamor of parties in pari delicto. And there is here no offer of the restoration of the status quo, if that were practicable.
Since the transfer of that date Securities stock had passed into the hands of more than 2,500 holders, many of them in Great Britain, France, and other parts of Europe; nearly a year after the filing of the government bill 75,000 shares were sold for cash, complainant Harriman concurring; some months after, Harriman and Pierce and the Oregon Short Line Company pledged their 'volved disastrous results.
Doubtless it became the duty of the Securities company to end a situation that had been adjudged unlawful, and this could be effected by sale and distribution in cash, or by distribution in kind, and the latter method was adopted, and wisely adopted, as we think, for the forced sale of several hundred millions of stock would have manifestly in
In fine, the title to these stocks having | give away, and dispose of certain malt, spirintentionally been passed, the former own-ituous, and vinous liquors, at the town of ers, or part of them, cannot reclaim the specific shares, and must be content with their ratable proportion of the corporate assets. Decree affirmed; cause remanded to Circuit Court with a direction to dismiss the bill.
(197 U. S. 488)
IN THE MATTER OF the Application of ALBERT HEFF, for a Writ of Habeas Corpus.
Horton, in the county of Brown, in the state and district of Kansas, to John Butler, to wit, two quarts of beer, more or less, and he, the said John Butler, being then and there an Indian, a member of the Kickapoo tribe of Indians and a ward of the government, under the charge of O. C. Edwards, an Indian superintendent, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America." Upon such conviction he was sentenced to imprisonment
Indian allottees-emancipation from Fed in the county jail of Shawnee county, Kan
1. An Indian allottee, on the receipt of his first patent under the act of February 8, 1887 (24 Stat. at L. 388, chap. 119), must be deemed within the provision of § 6 of that act, that, "upon the completion of said allotments and the patenting of the lands to said allottees," each allottee shall have the
benefits of, and be subject to, the laws of the state where he resides, in view of the further grant of citizenship which that section extends to every allottee, and of the fact that the issue of the final patent provided for by § 5 was to be delayed for twenty-five years, when it was to be issued to
the first patentee or his heirs.
2. Congress was not given the power, by the commerce clause of the Federal Constitution, to penalize by the act of January 30, 1897 (29 Stat. at L. 506, chap. 109), the sale of liquor within a state to an Indian to whom
an allotment had been made under the act
of February 8, 1887, which grants the allottees the privilege of citizenship, and gives them the benefit of, and requires them to be subject to, the civil and criminal laws of the state where they reside; since this eman: cipation from Federal control is not affected by the fact that the statute provides that the Indian title shall not be alienated or encumbered for twenty-five years, when a final patent shall issue, and stipulates that the grant of citizenship shall not impair their
right to tribal or other property.
[No. 14, Original.]
Argued January 10, 1905. Decided April 10, 1905.
sas, for a period of four months, and to pay a fine in the sum of $200 and the costs of the prosecution. The court of appeals of the eighth circuit having decided the question involved (Farrell v. United States, 49 C. C. A. 183, 110 Fed. 942) adversely to his contention, he presented this application for a writ of habeas corpus directly to this court. The act of Congress, January 30, 1897 (29 Stat. at L. 506, chap. 109), provides:
"That any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the government, or to any Indian a ward of the government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the government, through its departments, exercises guardianship, punished by imprisonment for not less than sixty days, and by a fine of not less than
one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter."
The act of Congress, February 8, 1887 (24 Stat. at L. 388, chap. 119), is entitled "An Act to Provide for the Allotment of Lands in
ABEAS CORPUS to inquire into a deten-Severalty to Indians on the Various Resertion under a conviction in the District vations, and to Extend the Protection of the Court of the United States for the District Laws of the United States and the Territoof Kansas of selling liquor within the state ries over the Indians, and for Other Purto an Indian allottee. Petitioner ordered poses." Section 1 of that act provides: discharged from imprisonment for lack of jurisdiction in the District Court over the offense.
Statement by Mr. Justice Brewer:
On October 15, 1904, petitioner was convicted in the district court of the United States, district of Kansas, under an indictment charging that he did "unlawfully sell,
"That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricul
tural and grazing purposes, to cause said within the territorial limits of the United reservation, or any part thereof, to be sur-States to whom allotments shall have been veyed, or resurveyed if necessary, and to made under the provisions of this act, or allot the lands in said reservation in sever- under any law or treaty, and every Indian alty to any Indian located thereon in quan- born within the territorial limits of the tities as follows:" United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other
"Sec. 4. That where any Indian not residing upon a reservation, or for whose tribe no reservation has been provided by treaty, act of Congress, or executive order, shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her, and to his or her children, in quantities and manner as provided in this act for Indians residing upon reservations; and when such set-property." tlement is made upon unsurveyed lands, the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided."
Section 5 reads:
Mr. A. E. Crane for petitioner.
Mr. Justice Brewer delivered the opinion of the court:
The contention of petitioner is that the act of January 30, 1897, is unconstitutional as applied to the sales of liquor to an Indian who has received an allotment and patent of land under the provisions of the act of February 8, 1887, because it is provided in said act that each and every Indian to whom allotments have been made shall be subject to the laws, both civil and criminal, of the
"That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allot-state in which they may reside; and furment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever; Provided, That the President of the United States may in any case, in his discretion, extend the period. And, if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void."
Section 6 is as follows:
"That upon the completion of said allotments and the patenting of the land to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of, and be subject to, the laws, both civil and criminal, of the state or territory in which they may reside; and no territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born
ther, that John Butler, having, as is admitted, received an allotment of land in severalty and his patent therefor under the provisions of the act of Congress of February 8, 1887, is no longer a ward of the government, but a citizen of the United States and of the state of Kansas, and subject to the laws, both civil and criminal, of said state.
The relation between the government and the Indians and the rights and obligations consequent thereon have been the subject of frequent consideration by this court. Among the recent cases, in which are found references to many prior adjudications, may be mentioned Stephens v. Cherokee Nation, 174 U. S. 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722; Minnesota v. Hitchcock, 185 U. S. 373, 46 L. ed. 954, 22 Sup. Ct. Rep. 650; Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. ed. 183, 23 Sup. Ct. Rep. 115; Lone Wolf v. Hitchcock, 187 U. S. 553, 47 L. ed. 299, 23 Sup. Ct. Rep. 216, and United States v. Rickert, 188 U. S. 432, 47 L. ed. 532, 23 Sup. Ct. Rep. 478. In a general way it may be said that the recognized relation between the government and the Indians is that of a superior and an inferior, whereby the latter is placed under the care and control of the former. Choctaw Nation v. United States,