Webb v. Ridgely

Brent, J., delivered the opinion of the Court. The object of the bill in this case is to restrain by injunction William P. Webb and others from voting certain shares of stock, at the annual election of directors of the Baltimore and Liberty Turnpike Company, which it is charged were colorably and without consideration, transferred by said Webb to divers persons, who are named in the bill, with the fraudulent intent of evading the fourth section of the charter of the Company, (Act of 1860, ch. 274,) which provides that each stockholder shall be entitled to one vote for each share of stock held by him, not exceeding tioenty-votes in all. The Court below passed an order granting the injunction as prayed, from .which the appellants, after filing their answer, have taken the present appeal. The only question before this Court, as it was before the Court below, is whether the bill presents sufficient grounds for the interposition of a Court of Equity by way of injunction. The first objection to the bill is, that it contains no prayer for process by way of injunction. There is no doubt under the established rules of Equity pleading, that in order to obtain a preliminary injunction there must be a formal prayer for such process, for although a bill may pray for relief by way of injunction, yet if it does not pray for the process of injunction, the process will not be granted. 4 Paige, 248; 2 Md. Chan. Decs., 467 ; Story’s Eq. Plea., sec. 44; Hilliard on Injunc., p. 53, sec. 126. But we do not think, upon an examination of the present bill, that it is liable to this objection. It is true that the injunction is not asked for in the prayer for process of subpoena; but in a clause of the bill immediately preceding and after the prayer “ for relief [369] by the writ of injunction.,” the following application is found set out: “Wherefore your orators pray that the writ of injunction may issue, prohibiting the said Abner Webb” and others specially named, “from voting the said stock, at the ensuing election to be held on the 10th inst., in person, and the said William P. Webb, the president of said Company, C. H. G-undersdorff, the secretary, and the directors of said Company, their officers, agents or servants, from voting the said stock by virtue ol‘ any power of attorney to them from the above fraudulent transferrees, and prohibiting the judges of election from receiving any of said votes, which may be tendered in person or by virtue of any power of attorney which may be executed as aforesaid.” We do not understand that the bill could contain a more formal prayer than this for process by way of injunction ; and we can see no reason, and know of no authority why such a prayer should necessarily be included in the prayer for process of subpoena. If the prayer is sufficiently set forth in the bill, it is all that equity pleading requires, and it is unimportant whether it is made a separate prayer, as in the bill in this case, or is united with the ordinary prayer for subpoena. The next objection to the order granting the injunction is, that the bill charges that certain persons named therein “are the fraudulent transferrees, so far as appears from a list of the stockholders furnished by the said Webb to your orators, and taken from the books of said Company,” while the list is not produced and filed as an exhibit with the bill. This list is in no way material to the granting of the injunction. In the case of Campbell & Voss vs. Foultney, Ellicott & Co., 6 G. & J., 94, the names of the fraudulent transferrees were not set out, yet the injunction as granted by the County Court was sustained. The foundation of the equity of the complainants in this bill is in the transfer colorably and without consideration of the [370] stock of the Company, with the fraudulent intent ofjl evading the charter of the Company, and of controlling thereby an election for directors. The parties named are only stated to be stockholders as appears by the list furnished, hut it is not charged that the list furnishes any proof of the fraudulent transfer. ■ If they are not stockholders, they are not injured by the injunction; and if they are stockholders, the fraudulent transfer of the stock to them, is matter of proof upon the final hearing. The cases cited by the appellants are materially different from this. In each of them, the paper, which was not exhibited with the bill, went to the foundation of the application for an injunction. In the present case, the list is hut a copy, from the books cff the Company, of the names of certain alleged stockholders, and cannot be regarded as evidence proper to sustain any of the important averments of the bill. Had any allusion to it been altogether omitted, the bill would have been as perfect as it is in its present form. There could therefore have been no reason or necessity for filing it as an exhibit. . The Baltimore and Liberty Turnpike Company was chartered in 1860 by a special Act of the Legislature, (ch. 274,) and by the fourth section of its charter, as before stated, it is provided, that “at all elections, each stockholder shall be entitled to one vote for each share of stock held by him, not exceeding twenty votes in all." This section, which is the foundation of the present hill, it is now contended by the appellants, has been repealed by section 53 of the Act of 1868, ch. 471, known as tb,e General Corporation Law, which provides, that “in all' corporations, in which there are stockholders, all elections shall be by ballot, and each stockholder shall be entitled to as many votes as he owns shares of stock in said corporation." The power of the Legislature to modify the charter of this Company is not contested, but it is denied that this has been done by the section last referred to. [371] The authorities cited by the appellants fully sustained the position, of which there can now be no doubt, that the Courts will hold a law to be repealed by a subsequent law, without any express clause of repeal, where the two provisions are so repugnant that they cannot stand together. If, however, they can stand together, there is no repeal by implication. Upon referring to section 216 of the Act of 1868, we think it very clear that the 53rd section has no application to the 4th section of the charter of this Company. That section, (216 of Act of 1868,) provides, that Ci all corporations heretofore formed under the general laws of this State, relating to corporations, or under any special law, are hereby declared to be entitled to the benefit of and subject to all the regulations in this Article contained for the government of the corporation herein referred to, so far as the same be applicable to said several corporations heretofore formed as aforesaid.” Under the provisions of this section, the doctrine of repugnancy cannot be applied to the case before us, for if the 53rd section is inapplicable to any corporation formed before the Act of 1868, by the express terms of the section just quoted, its provisions are not to he regarded as having any reference to it. By this construction the two sections in question can stand together, and the 4th section of the charter of this Company must be held to be still in force and binding upon its stockholders. The allegations in the bill in this case are similar to those in the case of Campbell & Voss vs. Poultney, Ellieott & Co.3 et al., 6 G. & J.3 94. In that case, as in this, the hill charged that transfers of stock had been colorably made for the fraudulent purpose of increasing the number of votes in violation of the provisions of the charter of the Company, and asked for an injunction to restrain the fraudulent transferrees of the stock from voting at an election shortly thereafter to he held. The Court held, that the facts stated iu the bill were “a violation of the [372] principles and spirit of the charter, and if carried into effect would he a practical fraud upon the appellants, and in derogation of their chartered rights, for the protection of which an injunction was the appropriate remedy.” In this view we concur; and think the Court helow properly granted the injunction in this case. (Decided 2nd July, 1873.) Another objection taken hy the appellants will he disposed of in a few words. It is contended that sections 8, 9, 10 and 11 of the Act of 1868, give to the appellees a full and adequate remedy at law. These sections do not provide any remedy in a Court of law. They require certain things-to he done in regard to the canvassing of votes at an approaching election, the administration of an oath to the elector by the judges of such election, and designate the form of the oath to he taken hy a person voting stock owned by a corporation, and the mode of voting hy proxy. Although these proceedings are under authority of law and are intended as safe-guards to promote a fair election, they do not constitute such a remedy at law as ousts the jurisdiction of a Court of Equity. “A full and adequate remedy at law” to accomplish this must be a remedy in a Court of Law. Order granting injunction affirmed,' and case remanded for further proceedings.