nature of the corporation as such. Thus, the right of a stockholder to obtain relief against a corporate act, illegal as in restriction of competition, is regulated by the same scribed as "in substance and effect a partnership of twenty separate corporations." To the same effect, in case of a similar agreement, State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 185; s. c., 30 N. E. Rep. 279 (1892), where it is said: “Whether the agreement should be regarded as amounting to a partnership between the several companies, limited partnerships and individuals who are parties to it, it is clear that its observance must subject the defendant to a control inconsistent with its character as a corporation. Under the agreement, all but seven of the shares of the capital stock of the company have been transferred by the real owners to the trustees of the trust, who hold them in trust for such owners; and, being enjoined by the terms of the agreement to endeavor to have 'the affairs' of the several companies managed in a manner most conducive to the interest of the holders of the trust certificates issued by the trust, have the right, in virtue of their apparent legal ownership, and by the terms of the agreement, to select such directors of the company as they may see fit, nay more, may in fact select themselves. The law requires that a corporation should be controlled and managed by its directors in the interest of its own stockholders, and conformable to the purpose for which it was created by the laws of its State. By this agreement, indirectly it is true, but none the less effectually, the defendant is controlled and managed by the Standard Oil Trust, an association with its principal place of business in New York city, and organized for a purpose contrary to the policy of our laws." And similar agreements were held illegal, as providing for a corporation becoming a partner, in Bishop v. American Preservers' Co., 157 Ill. 284; s. C., 41 N. E. Rep. 765 (1895); American Preservers' Trust v. Taylor Manuf. Co., 46 Fed. Rep. 152 (Cir. Ct. Mo., 1891); Mallory v. Hanaur Oil Works, 86 Tenn. 598; s. c., 8 S. W. Rep. 396 (1888). See also Sabine Tramways Co. v. Bancroft, Tex. Civ. App. s. C., 40 S. W. Rep. 837 (1897). It was declared prima facie illegal for a corporation to enter into a partnership, in Boyd v. American Carbon Black Co., 182 Pa. St. 206; s. c., 37 Atl. Rep. 937 (1897). But the unqualified statement that a corporation has no power to enter into a partnership seems too broad. See discussion in Green's Brice's Ultra Vires (2d Am. ed.), p. 423, note; also Bates v. Coronado Beach Co., 109 Cal. 160; s. C., 41 Pac. Rep. 855 (1895), where it is said: "There is no rule of law that will preclude a corporation from entering into a contract with an individual, which will have the effect to carry out, directly or indirectly, the object of its incorporation, and to provide in that agreement that the gains or losses of 1 Stewart v. Erie & Western Transp. Co., 17 Minn. 372, 400 (1871). "Thus, as to his right to relief being barred by participation, acquies cence or delay, Coquard v. National Linseed Oil Co., note 2, below, which see also as to right to maintain a suit for dissolution of the corporation. rules as in case of ultra vires contracts generally.1 So, with reference to action on the part of the State, the dissolution of the corporation is a proper remedy, as in case of ultra wires acts generally. Notwithstanding the well-established the venture shall be borne equally Linseed Oil Co., 171 Ill. 480; s. c., by both parties.” 49 N. E. Rep. 563 (1898). Upon forfeiture of the charter of a corporation for joining or maintaining a monopoly, held, under the California statutes, that the appointment of a receiver was not proper. Havemeyer v. Superior Court, 84 Cal. 327; s. c., 24 Pac. Rep. 121 (1890). Compare Cameron v. Havemeyer, 12 N. Y. Suppl. 126 (Supm. Ct., Sp. T., 1890), where receivers were appointed of property held under the Sugar Trust agreement declared illegal in 121 N. Y. 582. As to proceedings in an action to dissolve the combination to which the North River Sugar Refining Company was a party, see Gray v. De Castro & Donner Co., 10 N. Y. Suppl. 632 (Supm. Ct., Gen. T., 1890). The circumstance that a corporation was formed to create a monopoly, was held not to make the attorney-general a necessary party to a proceeding brought by the receiver of the corporation after its dissolution, the suit relating "wholly to contractual and statutory obligations arising out of its existence and operations." The court say: "The State presumably would be interested either in preventing the organization of such a corporation, or in arresting its work after its organization. Here, however, the company is already dissolved, and therefore harmless." See v. Heppenheimer, 55 N. J. Eq. 240; s. C., 36 Atl. Rep. 966 (1897). Under the Texas anti-trust acts of 1889 and 2 On this ground judgments were rendered dissolving the corporations, in People v. North River Sugar Refining Co., 54 Hun, 354; S. C., 7 N. Y. Suppl. 406; affirmed in 121 N. Y. 582; s. c., 24 N. E. Rep. 834(1890); People v. Milk Exchange, 145 N. Y. 267; s. c., 39 N. E. Rep. 1062 (1895); Distilling & Cattle Feeding Co. v. People, 156 Ill. 448; S. C., 41 N. E. Rep. 188 (1895); State v. Nebraska Distilling Co., 29 Neb. 700; s. c., 46 N. W. Rep. 155 (1890); People ex rel. v. American Sugar Refining Co., 7 Ry. & Corp. L. J. 83 (Super. Ct. San Francisco, 1890). See People ex rel. v. Chicago Gas Trust Co., 130 Ill. 268; S. C., 22 N. E. Rep. 798 (1889); People ex rel. v. Chicago Live Stock Exchange, 170 Ill. 556; s. C., 48 N. E. Rep. 1062 (1897). In State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 189; s. c., 30 N. E. Rep. 279 (1892), the judgment was of ouster of the corporation from the right to make and perform the agreement. But a suit for dissolution of the corporation cannot be maintained by a mere stockholder. Coquard v. National technical distinction between a corporation and its members, as legal entities, there has developed a strong tendency to regard acts of a combination of stockholders in restriction of competition, as in effect the act of the corporation, so far as legal consequences are concerned, though technically there has been no corporate act whatever.1 1 Thus, in State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 184; S. C., 30 N. E. Rep. 279 (1892), the agreement held illegal was not executed by the corporation itself, but by all the stockholders. It was contended that the corporation was a legal entity separate from its stockholders, and that their acts could not be ascribed to the corporation. The court say: "Where all, or a majority, of the stockholders comprising a corporation, do an act which is designed to affect the property and business of the company, and which, through the control their numbers give them over the selection and conduct of the corporate agencies, does affect the property and business of the company in the same manner as if it had been a formal resolution of its board of directors; and the act so done is ultra vires of the corporation and against public policy, and was done by them in their individual capacity for the purpose of concealing their real purpose and object, the act should be regarded as the act of the corporation; and, to prevent the abuse of corporate power, may be challenged as such by the State in a proceeding in quo warranto.” Similarly the unlawfully becoming a member of a partnership was, in People v. North River Sugar Refining Co., 121 N. Y. 582; s. c., 24 N. E. Rep. 834 (1890), held to be the action of the corporation itself, and not of the stockholders as mere individuals. See also People ex rel. v. American Sugar Refining Co., 7 Ry. & Corp. L. J. 83 (Super. Ct. San Francisco, 1890). So in Ford v. Chicago Milk Shippers' Assoc., 155 Ill. 166; s. c., 39 N. E. Rep. 651 (1895), holding not maintainable an action by a corporation composed of milk producers, to recover for milk sold. This on the ground that the corporation was within the prohibition of the Illinois anti-trust act of 1891 against "trusts" and "combinations." The court say: "The corporation as an entity may not be able to create a trust or combination with itself, but its individual shareholders may, in controlling it, together with it, create such trust or combination that will constitute it, with them, alike guilty." But under the Federal anti-trust act, acts of the corporation were held to impose no criminal liability upon stockholders or others interested in the corporation. Re Greene, 52 Fed. Rep. 104, 112 (Cir. Ct. Ohio, 1892). APPENDIX. I. CONSTITUTIONAL AND STATUTORY PROVISIONS RELATING TO TOPICS TREATED IN PART I We here include such provisions as most specifically and directly bear upon such topics. But many provisions not here included have, or may have, a more or less direct bearing thereupon, such as penal provisions against extortion, libel, malicious mischief and threats; provisions for the incorporation of labor organizations, and the establishment of official boards of arbitration to settle disputes between employee and employer. So we omit reference to many provisions of a special character, such as those relating to seamen. So, as being for the most part obsolete, provisions solely applicable to apprentices. Provisions on the subject of conspiracy are not referred to, except as specially bearing upon the topic under consideration. ALABAMA: By Criminal Code (1896), § 5504, it is a crime to entice away an apprentice or servant; by § 5505, to knowingly entice away a laborer or servant under contract; by § 5511, to "by force or threats of violence to person or property, prevent or seek to prevent another from doing work, or furnishing materials, or from contracting to do work, or furnish materials, for or to any person engaged in any lawful business, or disturb, interfere with, or prevent, or in any manner attempt to prevent, the peaceable exercise of any lawful industry, business or calling by any other person." CALIFORNIA: By Penal Code, § 646, it is a crime to "wilfully and knowingly aid, assist or encourage to run away, or harbor or conceal, any person bound or held to service or labor; " by § 679, to coerce a person to agree not to join a labor organization as a condition of being employed. |