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int) was treasurer of the combination. He said two corporations, for the purpose of testifies in his affidavit rather fully about managing and conducting said business; the formation of the combination between and he was by the order authorized and dithe two companies. He testified that the rected to take possession of the said premreserve fund above mentioned, of $500, ac- ises, franchises, plants, and all property, cumulated in the hands of the treasurer; books, and accounts, of any nature whatsothat finally Sommers and his party bought ever, belonging to the said corporations, and the affiant's stock, and he retired from the to manage and control the same during the management; that he turned over to the pendency of this action, and for that pur. new management all the funds in three dif- pose to take care of and manage and control ferent checks of $911.80, $107.94, and $14.25; the said property and business, and to pay that at that time there were expenses out- all debts and obligations, and collect all standing and unpaid of only $100; that when moneys due to the said corporations. It was he retired he was just preparing and ready ordered that the receiver give a bond, with to declare a dividend of $500, but he was in- sureties, in the sum of $10,000. Upon the structed by the Sommers party not to pay appointment of the receiver, the said G. A. said dividend; that while afliant was treas- Lauzier made an application to this court urer of the company he paid dividends upon behalf of himself, and purporting to be the stockholders of about $500 a month. also on behalf of the two district telegraph Carl Shultz and his wife, Mary Shultz, each companies, asking for a writ of certiorari to made an affidavit in which they testify as to review the action of the district court in apLauzier's and Butterfield's negotiations for pointing a receiver. The application, of the purchase of affiants' stock, and threats course, is made upon the ground that the that if they did not sell that they (Lauzier district court had no jurisdiction to make and Butterfield), would freeze out said affi- the appointment. That is the point disants. Haupt, one of the plaintiffs, also cussed and decided in the opinion below. makes an affidavit that for more than a year after the combination of the two com

Robinson & Wapleton and John W. Cotes he received monthly dividends on his

ter, for relators. Geo. Haldorn and Oliver stock of 50 cents per share. This affiant

M. Hall, for respondents. also alleges, on information and belief, that the combined corporations keep two sets of DE WITT, J. (after stating the facts). The books, one of which sets of books shows the question in this case is simply whether under actual receipts and disbursements and the the facts, as recited in the statement above, net profits of the association, and the other the district court had jurisdiction to appoint set of books does not show the correct ac- a receiver. State v. Judge of Second Judicial counts of the said corporations, but is kept Dist. Ct., 10 Mont. 401, 23 Pac. 1053. See, for the purpose of deceiving and misleading also, French Bank Case, 53 Cal., at page 550. stockholders who have been excluded from There is here no question of the court's disthe management and participation in the cretion under consideration. The relators in management of said business; that, since this application rely very largely upon the the Sommers party obtained control of the decision in the French Bank Case, but we business, affiant has received no dividends think that the case at bar is distinguishable on his stock, although there have been large from that case in many respects, and, in orprofits. This affiant then sets forth the ex. der to make the distinction apparent, we ecution of the Puddington notes and mort | quote as follows from the California case: gage. He also sets forth the facts showing “Irrespective of the effect of the fifth subthat-the Puddington franchise which he (Pud. division of section 564 of the Code of Civil dington) purported to sell to the companies Procedure, which will be presently considfor $9,000 was absolutely void and worth: | ered, there is no jurisdiction vested in courts less. One of the employés of the combined of equity to appoint a receiver of the propcɔrporations testifies to hearing Butterfield erty of a corporation in a suit prosecuted by say that the business was good and paying a private party. This is only to say that as well as any business in town.

there is no jurisdiction vested in these courts An answer was filed by the defendants, in such a case to dissolve a corporation; for and also some affidavits. It is not neces- the power of a receiver, when put in motion, sary to recite the contents of these papers, of necessity supersedes the corporate power. for on the writ of certiorari in this court the It necessarily displaces the corporate managequestion of the discretion of the lower court ment, and substitutes its own, and assumes, in appointing a receiver is not under review. in the language of the order under review, After hearing argument in the district court 'to do all and everything necessary in the as recited in its order, the court found that judgment of the receiver, under the advice of the plaintiffs were entitled to the appoint. | the court) to protect the rights of the cred. ment of a receiver pendente lite. It was itors and depositors of said corporation.' This therefore ordered that A. H. Barrett be apprecise question was brought directly under pointed receiver pendente lite of the fran- consideration here in the case of N-all v. chises, plants, business, books, and accounts, | Hill, 16 Cal. 145, where, in a suit brought by and of all other property belonging to the a stockholder, a receiver had been appointed

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by the district court to take possession of the complaint in the case in the district court property of the Gold Hill & Bear River Wa- asks for a dissolution of the corporation, but ter Company, a corporation existing under whether such relief may be granted in that the laws of this state. The opinion in that action is not now before us for review. case, rendered by Mr. Justice Cope, and con- The complaint also asks another relief, as curred in by the whole court, after referring set forth in the statement, namely, that the to the adjudicated cases in England and in negotiation of the notes described be rethis country, uses this language: "This de- strained, that the foreclosure of the mortcree, if permitted to stand, must necessarily gage be prohibited, and that the notes and result in tbe dissolution of the corporation; mortgage be declared null and void. While and in that event the court will have accom- the determination of these matters is pendplished, in an indirect mode, that which, in ing in the action, the receiver is to act. His this proceeding, it had no authority to do appointment is pendente lite only, and he directly. It is well settled that a court of is authorized to do only those acts which equity, as such, has no jurisdiction over cor- are peculiarly pendente lite. Again, in the porate bodies for the purpose of restraining French Bank Case, one ground of the decitheir operations or winding up their con- sion was that the action was against the cerns. We do not find that any such power corporation only (see page 546 of the deci. has ever been exercised in the absence of sion), and not against the malfeasing trus

statute conferring the jurisdiction.' Of | tees; that is, the “persons upon whom the course, it is not to be doubted that the trus- management of its affairs is devolved” (at cees of a corporation, the persons who con- page 551). But in the case at bar the manstitute its direction, and from time to time aging officers of the corporation are joined exercise the corporate authority in the man- as defendants, and their unlawful acts are agement of its affairs, are subject to the con- sought to be set aside, and their future trol of courts of equity; or, as observed by wrongful conduct enjoined. The receiver is Chancellor Kent, that the persons who from not to wind up the corporation under his rime to time exercise the corporate powers appointment. He is simply to manage the may, in their character of trustees, be ac- affairs of the same while charges of the countable to this court (the court of chancery] most outrageous frauds by the managers cor a fraudulent breach of trust; and,' he and controllers of the corporation are being adds, 'to this plain and ordinary head of investigated in the trial of the action. We equity the jurisdiction of this court over cor- are fully aware of the reluctance of courts porations ought to be confined.' Attorney of equity to interfere by receivership in the General v. Utica Ins. Co., 2 Johns. Ch. 388. | management of corporations, or to take that And in exercise of these admitted equity management from trustees elected by the powers of the court, referable to the well- shareholders. It is said in Morawetz on known grounds upon which its jurisdiction Private Corporations (section 281) as follows: ordinarily proceeds, embracing the cogni- "A court of equity will grant all relief to a zance of fraud, accident, trust, and the like, shareholder which the nature of his case the rights of natural persons, injured or put | may require. But it has always been a setat hazard through corporate proceedings un- tled principle that no interference with the authorized by law, will find ample protec- management of a corporation can be justition and redress. But, even in such a pro- fied, unless such interference is absolutely ceeding as that, the trustees must, of course, necessary to the attainment of justice. The be made parties defendant; and it will be reason of this rule is obvious. The officers observed, upon looking at the complaint of of a corporation are generally elected by a Gallagher in this view, that it is not sub- vote of the shareholders. Every shareholdstantially sufficient in its scope to put the er has a voice in their appointment, and may equity powers of the court in motion for insist that they shall represent the corporaany purpose. The corporation itself being tion when duly appointed. If an officer is the sole party defendant, the trustees—those guilty of a breach of duty, he may in many persons upon whom the management of its cases be removed by act of the corporation; affairs is devolved-are not parties, nor is but no minority of the shareholders have any relief sought against them personally. | any authority to restrain his action, or reThat there is no inherent power in the dis- move him and appoint another officer in his trict courts, as being courts of equity, to place. Nor can a court of chancery interappoint a receiver in such a case as that | fere at the suit of a portion of the sharepresented by the complaint of Gallagher, holders, and remove an offending officer, or is therefore apparent, both upon principle even enjoin him generally from acting for and authority.”

the corporation, unless this be essential to In the California case an important ele- the protection of the corporate rights; as, ment in the decision, as it appears, was that for example, where the directors have conthe appointment of the receiver acted as a spired to defraud the corporation, or have dissolution of the corporation. In the case otherwise shown themselves to be totally at bar no such result is intended by the or- unfit to be intrusted any longer with the der appointing the receiver, or is accom- management of the company's affairs. The plished by that order. It is true that the court must ordinarily confine its remedy to

the redress of the specific wrongs which language from a very recent decision (Janu. bave been charged."

ary, 1894) of the Kansas supreme court. But the case before us is not an ordinary While the Kansas statute is broader than one, and perhaps it may be doubted that ours, and the case of In re Lewis, 52 Kan. many such histories of fraud will be found in 660, 35 Pac. 287, is decided largely upon the the conduct of human affairs. It is difficult statute of that state, still the following reto imagine a case more thoroughly saturated marks of the Kansas court are valuable, as with fraud than this which was presented is also the collection of authorities appended to the district court on the application for to the decision. We extract from the opinion the appointment of a receiver. Four share- as follows: "By the averluents of the petiholders of two small corporations, which were tion, it would appear that all the officers of paying handsome dividends, obtained con- the corporation have conspired together to trol of the majority of the stock, and elected divert its business to another company, and their own officers. These four conspirators, to absorb its earnings and .assets, and apinstead of paying $500 a month dividends propriate the same to their own uses. Unwhich the corporations were earning, pro- der those circumstances, it would be useless ceeded to put that money into their own pock- to apply to the officers to bring an action ets. They kept false books to deceive the against themselves, and in such cases the shareholders. They pretended to buy for the law permits the appointment of a receiver corporations an absolutely worthless fran- at the instance of a stockholder. In most chise, when they already owned two good cases of this character no other adequate and valid franchises, which were more than remedy exists. The appointment of a reample for the same purpose. They gave the ceiver is not necessarily a proceeding to discorporations' notes for this worthless fran- solve a corporation, nor will it necessarily chise, and mortgaged all of the property of result in its extinction. The property and the corporations for the purpose of having assets of the corporation, which are being disthe mortgage foreclosed, and the property of sipated and fraudulently absorbed, will be the corporations wiped out. It is needless to preserved and rightfully appreu under the enlarge upon these facts. They are all set supervision of the court, and may be restore! forth in the statement preceding this opin- to the officers of the corporation when there ion. This is a story of wrecking and rob- has been a change of othicers, or when it is bing that would make a pirate of the Spanish deemed prudent and safe to restore the propmain exclaim, in the language of Lord Clive, erty and affairs of the corporations to its I am surprised at my own moderation.” duly-constituted officers. See First Nat. Is not interference here absolutely necessary, Bank v. United States Tile Co., 105 Ind. 227, as Morawetz says, to the attainment of jus- 4 N. E. 816; Pike Co. v. Hammons, 129 Ind. tice? Again Morawetz remarks, as quoted 368, 27 N. E. 487; Order of Iron Hall Y. above, the court of chancery will not interfere Baker (Ind. Sup.) 33 N. E. 1128; Haywood at the suit of the shareholders unless this v. Lumber Co., 64 Wis. 639, 26 N. W. 181; be essential to the protection of the corporate Consolidated Tank-Line Co. v. Kansas City rights. We can scarcely conceive of a case Varnish Co., 43 Fed. 204; Mor. Priv. Corp. where it would be more essential than it is § 281; Pom. Eq. Jur. § 1334; High, Rec. $ here, for the protection of the corporate 313; Spel. Priv. Corp. $ 1001; 20 Am. & rights, for, if the interference is not bad, the Eng. Enc. Law, 272." We also find it stated corporate property will be swept away from in High on Receivers as follows: "It has the corporations into the grasp of the conspira- already been shown that in most of the tors; and, while the investigation into the states of this country the general jurisdicacts of the Sommers-O'Rourke party is be- tion of courts of equity over corporations has ing made by the court, should the court allow been enlarged to the extent of authorizing this same band of marauders to remain in the appointment of receivers in behalf of possession of the corporations and their prop- creditors and shareholders." Section 313. erty, and continue to convert the assets to The supreme court of Michigan (October, their own use, and exercise their own pleas- 1892), in Miner v. Ice Co., 93 Mich. 97, 53 N. ure as to the trusts imposed upon them? W. 218, after reviewing the history of a fraud To allow such a proceeding, it seems to us, which perhaps is worthy to be ranked with would shock the conscience of the most in- that of the case at bar, says: “The present case different court. Our statute provides that furnishes an instance of gross abuse of trust "a receiver may be appointed by the court Must the cestui que trust be committed to in which an action is pending, or by the the domination of a trustee who has for seven judge thereof:

Sixth. In all oth- years continued to violate the trust? The cases where receivers have heretofore law requires of the majority the utmost good been appointed by the usages of courts of faith in the control and management of the equity." Code Civ. Proc. $ 229. We are of corporation as to the minority. It is of the opinion that the decisions of the courts sus- essence of this trust that it shall be so mantain the doctrine of the powers and the aged as to produce for each stockholder tbe usages of courts of equity in such a case as best possible return for his investment. The that which was made in the showing before trustee has so far absorbed all returns. What the district court. We note the following is the outlook for the future? This court, in

er

view of the past, can give no assurances. in the bands of an officer of the law in order It can make no order that can prevent some that it may be under the protecting care and other method of bleeding this corporation, if control of the court, and be delivered unim. it is allowed to continue. If Lorman be re- paired to the persons to whom it is legally moved, who shall take his place? He has ascertained to belong." See, also, Ranger v. the absolute power to determine. Once de- Cotton-Press Co., 52 Fed. 611; Mor. Priv. posed, he may elect a dummy to fill his place. Corp. 8 642. There are practically but three persons con- Upon questions of equity jurisdiction, aid cerned, Miner, Lorman, and Lorissa Carpen- is always found in the records of the ter, and she has for seven years, in fraud courts of chancery of New Jersey, and from of complainant's rights, been paid a dividend a decision rendered in May, 1894, by that to secure her acquiescence. Who has any learned court, we quote as follows: "The right to complain if ample and complete jus- power of this court to appoint a receiver of tice is awarded to Miner? Who shall be per- a corporation, either because it has no propmitted to stand between him and an ade- erly constituted governing body, or because quate remedy? This corporation has utterly there are such dissensions in Its governing failed of its purpose, not because of matters body as to make it impossible for the corpobeyond its control, but because of fraudulent ration to carry on its business with advanmismanagement and misappropriation of its tage to its stockholders, I think must be refunds. Complainant has a right to insist garded as settled; but I think it is equally that it shall not continue as a cloak for a well settled that this power is subject to cerfraud upon him, and shall not longer retain tain limitations, namely, it must always be his capital, to be used for the sole advantage exercised with great caution, and only for of the owner of the majority of the stock, such time and to such an extent as may be and a court of equity will not so far tolerate necessary to preserve the property of the such a manifest violation of the rules of nat- corporation, and protect the rights and interural justice as to deny him the relief to which ests of its stockholders. As soon as a lawhis situation entitles him. I think a court fully constituted and competent governing of equity, under the circumstances of this body comes into existence, whether it is case, in the exercise of its general equity brought into existence by an adjustment of jurisdiction, has the power to grant to this the dissensions or by the election of a new complainant ample relief, even to the disso- body, and such body is ready to take posseslution of the trust relatious. Complainant sion of the property of the corporation, and is therefore entitled to the relief prayed. A proceed in the proper discharge of its duties, receiver will be appointed, and the affairs of the court must lift its hand and retire. This this corporation wound up.” In the Michi- is the doctrine, as I understand it, which was gan case the decision went to the winding up laid down by Vice Chancellor Malins in of the corporation, but in the case before us Featherstone v. Cooke, L. R. 16 Eq. 298, and the receiver is only to hold until the charges Auxiliary Co. v. Vickers, Id. 303, and which of fraud are investigated. The Michigan de- was approved by Chancellor Runyon in Eincision is an able discussion of the powers of stein v. Rosenfeld, 38 N. J. Eq. 309, and by the court of equity in this respect, and a val- Chancellor McGill in Archer v. Waterworks uable review of decisions. It may be said Co., 50 N. J. Eq. 33, 24 Atl. 508.” Edison v. here, as was said in the Michigan case, that Phonograph Co., 29 Atl. 197. It is true, of the corporations have utterly failed of their course, that the power must be exercised purpose, not because of matters beyond their with great aution, but we are of the opincontrol, but because of the fraudulent mis- ion that the most scrupulous caution would management and misappropriation of their not cause a court to hesitate in the matter funds. An equal if not greater mismanage- which was before the district court. Further. ment and misappropriation has been done more, the district court did not go any furby the oñcers of the corporations who are ther in the appointment than was necessary here made defendants, and whose acts are to preserve the property of the corporations, sought to be restrained and set aside and and protect the rights and interests of its declared null and void. We also find the stockholders, as was stated in the New Jersame general subject mentioned in the fol

sey case. It does not seem necessary to go lowing language in Waterman on the Law further in this discussion. The facts of this of Corporations (volume 2, $ 356): "The pow- case will not afford a precedent in the fuer to appoint a receiver is necessarily in- ture for any imprudent or unauthorized apherent in a court which possesses equitable pointment of a receiver for corporations, or jurisdiction. It is exercised when an estate the unwise withdrawal of the business of a or fund is in existence, and there is no com- corporation from the management of its duly. petent person entitled hold it; or the per- elected and lawfully acting trustees. The son so entitled is in the nature of a trustee, case is a precedent only as to its own facts. and is misusing or misapplying the trust; or Here the objects of the existence, and, inthe property is about to be removed beyond deed, the practical existence itself, of the the reach of the court; and, generally, when it corporations, are being totally destroyed by is necessary to secure rights and prevent a the unlawful (not to use a stronger term) acts failure of justice. The property is thus placed of its managers; and one object, at least, of

v.39r.no.3-21

the action in the district court, is to set aside tory offense of burglary, the pleader must and prevent such unlawful acts of such man- aver that the place entered was one includagers, and the action itself is against such ed within the strict terms of the statute. unlawfully acting persons. If they are al- But we think that in the use of the word lowed to go on in their course which they "box car," instead of "rail car," there was are pursuing, the corporations are to be to- no substantial departure from the rule. A tally wrecked, their funds are to be embez- "box car" is defined by the Century Dictionzled, and their property is to be taken from ary as “an inclosed and covered freight car," them by a fraudulent conspiracy of the man- and a freight car, by the same authority, is agers, whose position is one of trust towards “a railroad car for carrying freight, comthe plaintiffs in the action in the district monly a box car.” A box car is therefore court. Under such a vigorous showing of a rail or railroad car; hence the statute is facts, we believe that the decisions of the complied with, and the information is good. courts of equity uphold the powers and The next point necessary to consider is the usages of those courts to interfere by a re- misdirection of the jury in a matter of law. ceivership. See the cases cited in this opin- This was raised by a motion for new trial. ion and the cases referred to in those cita- The court gave to the jury the statutory defitions. We are therefore of the opinion that nition of "burglary," and, under general inthe writ of certiorari must be dismissed, and structions, charged them, among other it is so ordered. Dismissed.

things, that in every criminal act a criminal

intent was necessary. But the only particuPEMBERTON, C. J., and HUNT, J., con- lar instruction applicable to the testimony cur.

was as follows: “You are instructed that

under our statute relating to burglary, as (15 Mont. 424)

given to you elsewhere in these instructions,

it is not necessary, in order to constitute the STATE v. GREEN.

crime, that there should be a breaking. A (Supreme Court of Montana. Feb. 25, 1895.)

mere entering into a building or car is suffiBURGLARY-INSTRUCTIONS-INTENT.

cient, and if you believe, beyond a rea1. The words "box car," used in an infor- sonable doubt, that the defendant stole the mation for burglary, are equivalent to the words “rail car,” used in the statute defining burglary.

property mentioned and described in the in2. It was error to charge, on a trial for en- formation, and that said property was in the tering a box car with intent to steal, that a car mentioned in the information, then you "mere entering is sufficient," without expressly

may infer that the defendant did enter the charging that the entry must have been made with such intent.

car with the intent to commit the said lar-

ceny." The first sentence of this instruction Appeal from district court, Beaverhead

was correct as far as it went, and unless county; Frank Showers, Judge.

the defendant made special requests for adEdward Green, convicted of burglary, ap

ditional instructions, had the court gone no peals. Reversed.

further, error could hardly have been comW. S. Barbour and Robt. B. Smith, for ap- plained of. It simply laid down the modipellant.

fied rules which do not require any break

ing or force in the entry to constitute an ele. HUNT, J. The defendant was charged | ment of the crime of burglary. But the with the crime of burglary. The charging court, after negativing the common-law in. part of the information was as follows: gredient of a breaking, proceeded to posi

* willfully, unlawfully, feloniously, tively define the crime by express limitations and burglariously, a certain box car of S. H. as to the sufficiency of the evidence necesH. Clark, Oliver W. Mink, E. Ellery Ander- sary to prove it, and to apply the definition son, J. W. Doane, and F. R. Coudert, re so given to the case under consideration, by ceivers of the Union Pacific Railway Com- telling the jury that a "mere entering is sufpany, there situate, did enter, with the in- ficient." This by itself was erroneous, betent then and there the goods, chattels, and cause a mere entry is not enough to prove a valuable property of the said receivers of burglary, unless such entry was made with the said Union Pacific Railway Company, in the intent, at the time thereof, to steal the the said box car then and there being found, property described in the information. The willfully, unlawfully, feloniously, and bur- two essential averments--the entry and the glariously to take, steal, and carry away, con- felonious intent at the time of the entrytrary,” etc. The defendant was found are indispensable to support the information. guilty, and sentenced to the penitentiary. A State v. Carroll, 13 Mont. 246, 33 Pac. 6-8, motion in arrest of judgment was made, for Nor would it seem that the omission was the reason that the facts stated in the in- cured by saying to the jury that, if they be. formation do not constitute a public offense. lieved that the coal was stolen by defendThe point that the appellant makes is that ant, they might infer that the defendant did the charge that the defendant entered a cer- enter the car with the intent to commit the tain box car, and not a “rail car," as de- larceny, because, except by this incidental scribed in the statute of burglary, is fatal charge upon the weight of evidence, the jury to the information, In charging the statu- were not told that, before they could convict,

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