Woodstock Iron Co. v. Richmond & Danville Extension Co.

after stating the case, delivered the opinion of the court.

As appears from the pleadings, which are set forth in the above statement, some time previous to November, 1881, the plaintiff below, the Richmond and. Danville Extension Company, a corporation created under the laws of New Jersey, entered into a contract with the Georgia Pacific Railway Company, a corporation created under the laws of Georgia, to locate and construct for the latter company, by the neai-est, cheapest and most suitable route, a railroad from Atlanta in Georgia through Alabama to Columbus in Mississippi, at the rate of $20,000 a mile, to be paid in whole or part in the bonds of the railroad company; and in November, 1881, it was engaged in locating and. constructing the road under the contract. At that time the defendant below, the Woodstock Iron Company, á corporation created under the laws of Alabama for the manufacture and sale of products of iron ore, was doing business at the town of Anniston in that State; and it then made a formal proposition, in writing to the Extension Company that if it would locate and construct, or cause to be located and con. structed, the railroad by way of the town of Anniston, then the Iron Company would donate .and convey, or cause to be donated and conveyed, to the Extension Company sundry parcels of land both within and without the corporate limits of *655 the town, for the location of the road, and which might be necessary for sidings or spare tracks; and would also donate- and pay to the Extension Company $30,000, one half when the road made a connection with the line of the Alabama Great Southern Railroad Company at Birmingham, Alabama, and the other half when the road made a connection .with the line of the Louisville and Nashville Railroad Company at that place; the payments to be made provided the road should be. so far completed as to make the connections designated within three years. The proposition was formally accepted in writing by the Extension Company, through its vice-president, John W. Johnston.

Pursuant to this contract the Extension Company located and constructed the railroad by way of the town of Anniston' by the first of January, 1883, and made the connections specified, within the period designated, and complied in every respect with its terms.

" The Woodstock Iron Company complied with the contract' only in part. At the request of the Extension Company it conveyed to the railroad company the several parcels of land mentioned, and also upon like request furnished it with cars to the value of $6325. For the balance, amounting to $23,675, the present suit was brought, and the principal question presented to the court' below, and to this court, is whether the contract is obligatory upon the defendant,'or whether .it is void as being against public policy.

In determining this question, it must be borne in mind that the contract of the .Extension Company with the Georgia Pacific Railway Company was to locate and construct the' road “by the nearest,.cheapest and most suitable route from Atlanta, Georgia, through Alabama to Columbus in Mississippi,” for the consideration of $20,000 a mile, and that ’ it is averred in the pleadings and admitted by the demurrer, that in causing the road to be located by way of Anniston, it ,was necessary to deflect the same from the nearest and cheapest and most natural route .between the designated termini, a distance of five miles, at an additional cost of $100,000. In the light of these facts there can be but one answer given to the *656 question presented respecting the contract between the Iron Company and the Extension Company, namely, that it was a void contract, immoral in its conception and corrupting in its tendency. It was a contract by an employe of a railroad company with a third party, for a consideration to be received from that third party, to violate its engagement with its employer in the important business of locating and constructing a railroad, and instead of selecting the shortest,, cheapest and most suitable route, to locate the road by .a longer route, and thus impose an unnecessary and heavy burden upon its employer.' The proposition of the Iron Company, which was accepted, was to pay the Extension Company for a breach of its duty. In plain language, it was nothing less than the offer of a bribe to the latter company to be faithless to its engagements, and to do with reference to the business in which it was engaged what would amount to little less than robbery of its employer. The t 'ansaction on the part of the Iron Company was none the less offensive, because of the threats of the Extension Company, made by its vice-president, who was also a director and stockholder of the railroad company, that, if the land and money mentioned were not donated, it would cause the road to be located away from Anniston by the rival town of Oxford. • The threats did not excuse, much less justify, the offer.

"We have thus far considered the case as one only between private parties, where an employé has agreed, for a money consideration, to violate his obligation to his employer; but there are other circumstances which add to the offensiveness of the transaction. The business of the Extension Company was one in which the public was interested. . Railroads are for many purposes public highways. They are constructed for the convenience of the public in the transportation of persons and property. In their construction without unnecessary length between 'designated points,, in their having, proper accommodations, and in their charges for .transportation, the public is directly interested. Corporations, it is true, formed for their construction are private corporations, but whilst their directors are required to look to the interests of their stock *657 holders, they must do so in subordination to and in connection with the public interests, which they are equally bound to respect and subserve. All arrangements, therefore, by which directors or stockholders or other persons may acquire gain, by inducing those corporations to disregard their duties to the public are illegal and lead to unfair dealing, and thus being against public policy will not be enforced by the courts. In this case the Extension Company, to which' the duty of locating and constructing the railroad between its termini was entrusted, in agreeing, for a consideration offered by a third party, to disregard that duty and locate and construct the road by a longer route than was. required, not only committed a wrong upon the railroad company by thus imposing unnecessary burdens upon it, to meet which larger charges for transportation might be called for, but also a wrong upon the public.

The case of Fuller v. Dame, 18 Pick. 472, 483, is instructive on this head. It there appeared that Dame, the defendant, was the owner of a large tract of land and flats situated on Sea- Street, and between it and Front Street, on the south side of Boston, which would be greatly enhanced in value if the Boston .and Worcester Bailroad Company would locate one of its depots between those streets and easterly of Front Street. To induce the company to make such location it was supposed to be necessary to form an association, which 'would pay to it a large sum of money and furnish a large tract of land for the dépot, besides making other donations; and to provide the money, and land, also to form a company to purchase the flats and land between the streets named, to be held as joint stock and laid out in due form, and shape for sale. Fuller agreed to aid Dame in getting up such company, and in inducing the railroad company to fix its termination and principal depot between those- streets, Fuller being himself of opinion that' the railroad ought, from a view of the public good and the good of its stockholders, to enter the city on the southerly side and have its principal depot there. In consideration of such, agreement Dame gave his note for $9600, payable to Fuller in three years, the note being deposited with third parties, to be de *658 livered to-.him when the principal depot of the railroad company for ^merchandise was constructed between the streets mentioned. Fuller was at the time of the agreement a stockholder in the railroad company. The road having 'been completed, and the principal depot located between the streets ■mentioned, and. the note not being paid, suit was brought upon it. It was adjudged that the contract was contrary to public policy, and that the: note given in consideration of it was therefore void. In coming to this conclusion the court 'considered somewhat at large the ground upon which contracts ■of this character were avoided, and held that it was because they tended to place one under wrong influences, by offering him a temptation to do that which might injuriously affect the rights and interests of third persons, and that the case ■before it -was within the operation of this principle, the contract tending injuriously to affect the public interest in establishing the fittest and most suitable location for the termination pf the Boston and'"Worcester Bailroad for the accommodation of the public travel. It is true the road was constructed and ■located by thé corporation at the expense of private, parties under the sanction of the legislature; incorporated fbr that purpose, who were to be remunerated by a toll levied and regulated by law; and it wa,s left to its directors to fix 'the termination and place of deposit. But the court added: “ In doing this a confidence was reposed in them, acting as agent's for the public, a confidence which, it seems, could be sarely so reposed, when it is considered that the interests of the corporation as a company of passenger and freight carriers for profit was identical with- the interests of those who were to be carried, and'had goods to be carried, that is with the public interest. This confidence,- however, could only be safely so reposed under the belief that all- the -directors and members of the company should exercise their-best-and their unbiased judgment upon the question of Such fitness, without being influenced by distinct and éxtraneous interests, having no connection with tlm accommodation of the public or the interests of the ’ company: Any attempt, therefore, to create and bring into efficient-operation such undue influence has all. the injurious effects of *659 á fraud.upóri the public, by causing a question which .ought to be decided with a sole and single regard to public-interests, to be affected and controlled by considerations having) no regard to such interests. It is no answer to say that, by fche act of incorporation, the executive authority was vested, in a board of directors, arid Mr. Fuller was not a director. He was a member of the company and might be chosen a, director. He was an elector of the directors, and they were directly responsible to the stockholders. The immediate act. of location was with directors, but the efficient authority was with the members and stockholders of the corporation, who ele^t- the directors. The election may depend upon the knowp views . and opinions of candidates upon this very -question of location. They had a right to his disinterested judgment and advice upon the question of location; and this could not be exercised whilst he held and relied on a promise for a large sumí of money, the payment of which depended upon this decision of the question by the directors.”

The case before us is much stronger than the one th,us decided by the Supreme Judicial Court of Massachusetts. There the contract was held invalid because made with a stockholder ■of the company, by which he promised, for a pecuniary consideration, to endeavor to procure the company to locate-one of its depots at a particular place in the city. Here, the; contract ■'was with an employé of the company to . induce it to-disregard its obligations, and the principal person making-that contract •on the part of the employé was a director and stockholder of . the company which was to be thus seriously affected.

The principle, which -is so clearly and forcibly stated in Fuller v. Dame, has been applied in numerous instances by the highest courts of different States, to avoid contracts made to •influence railroad companies in selecting their routes :.and -locating their depots and stations, by donations' of land and money to some of its directors or stockholders or agents, -Thug,-in Bestor v. Wathen, 60 Illinois, 138, it appeared that in 1840 .the •'legislature of Illinois incorporated-a company to-build-, a-raii-road from a point on the Mississippi Elver to Peoria,- and-that 'in 1852 the charter was amended sons to.-authorize theextensipn *660 •bf the' road from Peoria eastward to the state line. In 1855 the' company made a contract with the firm of Cruder, Secor & Company, by which the latter undertook, the construction and equipment of the road. In 1856, whilst engaged upon this work, the members of the firm, together with Bestor, the president of the railroad company, Sweat, one of its directors, áttd Smith, its construction agent, entered into a contract with Wathen and Gibson, the defendants, by which the latter, being the'owners of 160 acres of land, agreed, in consideration that the road then in process of construction should cross the Illinois' Central Railroad where their land was situated, the land . would' be laid out into town lots and sold, and after proceeds •amounting to $4800 had been received, which were to be regained by Wathen and Gibson, a conveyance of an undivided-¡half bf the residue should be made to the1 other parties. The only consideration for this agreement, aside from- the location ■of the road, was that the other parties should assist and contribute to the building up of the. town on the land. ■ The road was constructed across the Illinois Central, and Wathen and ¡Gibson laid out the land into lots and proceeded to sell the same,, and the. town of El Paso was built on the land and-an adjoining tract. In 1863 the plaintiffs filed their bill against Wathen and Gibson for an account of the sales and a conveyance of the undivided half of the lots unsold. The court held the 'contract void as against public policy, and dismissed the suit1,’.and. the decree in this respect was affirmed by the Supreme--Court of the State, that couyt observing that when the people through'their legislature grants to a company the right of eminent domain for the purpose of constructing a railroad it -is upon the supposition that the road will bring certain benefits1 to the public, and that when subscriptions are made to its stock, .the money is subscribed upon the understanding that the officers, entrusted with the construction of the road, will •so locate its line and establish its depots as tp bring the highest pecuniary profit to the stockholders compatible with a ¡proper regard,for public convenience; that these alone are the considerations which should- control officers of the road, and ¡so-far as they permit their official action to be- swayed by *661 their private interests they are guilty of a breach of, trust towards the stockholders, and a breach of duty to the publie at large; and it added: “ A court of equity will not enforce a contract resting upon such official delinquency or even tending to produce it. Such is the character of the contract before us. If we enfdrce it we lend the sanction of the court to a class.'of contracts, the inevitable tendency of which is to make the officers of these powerful corporations pervert their trust to their-private gain, at the price of injury' at once to the stockholders and to the public. Rendered into plain English, the contract in this case was a bribe on the part of Wathen and Gibson-.to the president and other officers of the railway company, .and to the contractors who were building the road, of an undivided half of one hundred and sixty acres of land, in consideration of which the road was to be constructed on a certain line: and a depot built at a certain point. Now if this was the best- line for crossing the Illinois Central considered with reference to the interest of the stockholders and of the public, then it was the duty of the officers of the company to establish it there'; and--if they intended so to do because it was the proper line, but professed, to be hesitating between this and- another line in-order to secure to -themselves the contract under consideration, as is somewhat indicated by the evidence, then they were, practising a species of fraud upon thé defendants, and using a-false pretext in order to acquire defendants’ property without consideration. If on the other hand this line was not the best, but was adopted because of this contract, the case is; still stronger against the complainants. If such, was the fact they are asking the court to enforce the payment of a bribe, the promise of which induced them to sacrifice their official duty to their private gain. - If, as a third contingency, the choice lay between this line and another equally good, but not better, and they were influenced by this. contract to adopt this line, then, althpugh neither the company nor the public has been injured, yet the defendants have made their official power an instrument of private emolument in a manner which no court of equity can sanction. In this particular case no wrong may have been done, and. yet public policy plainly forbids the sane-. ■ *662 tion.' of such contracts because of the great temptation they would offer to official faithlessness and corruption.” The doctrine of this'case was approved by the Supreme Court of Illinois in Linder v. Carpenter, 62 Illinois, 309, and in St. Louis, Jacksonville and Chicago Railroad v. Mathers, 71 Illinois, 592.

Holladay v. Patterson, decided by the' Supreme . Court of Oregon,. 5 Oregon, 107, is also in harmony with Fuller v. Dame and Bestor v. Wathen, the court following a similar course of reasoning to that adopted in those cases. That doctime and reasoning aré also often applied where the reward or money consideration for taking'a particular route or establishing^ station, or depot at á particular place is offered directly to-the railroad company instead of to its directors, stockholct é.rsi or agents. But we do not refer to. them, because there are', excéptions or qualifications in the application of. the doctrine in-such cases requiring explanation, as where a subscription is conditioned, upon the adoption of a particular route,'ór thé.construction of a station or depot at a particular place. Pacific Railroad Co. v. Seely, 45 Missouri, 212; Racine County Bank v. Ayers, 12 Wisconsin, 512 (Vilas and Bryant’s ed. 570); Fort Edward, and Fort Miller Plank Road Co. v. Payne, 15 N. Y. 583. There is no exception in any decision called to our attention as. to the character of a contract when for a pecuhiary consideration directors, stockholders, or agents of á company undertake to influence its conduct in these mattersi Indeed, the law is general that agreements upon pecuniary considerations, or the promise of thejn, to influence the. eon-duct,of, officers charged with dutiel affecting' the public interest^ or .with duties of a. fiduciary character to private parties, aré against the true policy of the State; which is to secure fidelity in the discharge-of all such duties. Agreements ’ of -that character introduce mercenary considerations to control the conduct of parties, instead of considerations arising; from the nature of their duties and' the. most efficient way of dis* ■charging them. They are,; therefore, necessarily corrupt in their tendencies. ■ As we. said in Tool Company v. Norris, 2. Wall. 48, 56, “that all agreements for pecuniary considerations *663 tó control the business operations of the government, on the. regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to. the question whether,-improper means are contemplated or used in their execution,” so we say of agreements like the one. in this case;. they áre against public policy because, of their corrupt tendency, whether' lawful or unlawful means are contemplated or used in carrying them into execution. “The law,” as said in that case, “looks to the general tendency of such agreements; and it closes the door tó temptation by refusing them recognition in any of the ■ courts of the country.” Oscanyan v. Arms Co., 103 U. S. 261 274.

From the views expressed it follows that the court.- below,, erred in sustaining the demurrers to the special pleas above-mentioned, and it is not necessary, therefore, to consider the other pleas. The judgment must be

Reversed <md the cause remanded with i/nstructionSto over'-* rule the demurrers to the •above pleas, a/nd take further proceedings not inconsistent with this opinion.