(4) An intervention is not necessary to enable the petitioners to protect any pecuniary interest or equity they have. Judge Thayer delivered the opinion of the court. The formal entry of the court is as follows:

"The application of Edward S. Harriman, Winslow S. Pierce, and the Oregon Short Line Railroad Company for leave to intervene in this case was heard before this court on April 12 and 13, 1904, and after due consideration it is hereby ordered that the said application be and the same is hereby denied."

After this decision of the circuit court of the United States, the legal contest was shifted from the west to the east; and the history of the Securities case became almost exclusively legal. On petition of Harriman, Pierce, Oregon Short Line Railroad Company, and the Equitable Trust Company of New York,66 Andrew Kirkpatrick, United States circuit judge, issued an order restraining the Northern Securities Company or any of its officers or agents from disposing of any of its stock until after the hearing and decision upon the motion for a preliminary injunction of Harriman, etc.67 The motion and order were made on April 20, 1904, and the hearing set for April 25, 1904, in the city of Trenton, N. J.

The motion for the preliminary injunction is a short document of twenty-five lines, supported by a brief of a little over one hundred pages, supplemented later by a "reply brief" of about the same length.68 The brief recites the facts of the organization of the Northern Securities Company, maintains that the court has jurisdiction, repeats that the Securities Company holds the Northern Pacific shares as depository or custodian, denies the alleged equities of the stockholders of the Securities Company, insists upon the illegality of the original transfer of stock to the Securities Company, and presents specific figures expressing the threatened loss to the Harriman interests through the proposed plan of distribution. The figures show that the annual income which would

66 36: 1.

67 36:4.

68 38.

69 37.

70 37: 18, 35.

be collected by the Oregon Short Line Company on the proposed distributive shares of the Northern Pacific and Great Northern stock would be $3,969,667, whilst the income which it would collect on the $71,732,062 Northern Pacific stock would be equal to $5,021,244, a difference in annual income of $1,051,577. In general, the brief follows the lines of argument outlined above in connection with the proceedings before the four circuit judges. In fact, from an economic point of view, the case was closed with the supreme court decision of March 14, 1904, although it required another year and a second decision of the supreme court to end the controversy. Familiar facts were rehearsed over and over again, and citations accumulated in geometrical ratio. There may be a great deal in these conflicts between legal giants, representing industrialists of corresponding stature, which possesses value to the student of the principles and technicalities of law; but to a student of economics the interest is not maintained to the end.

71

On behalf of the Securities Company it was argued "1 that the Northern Pacific stock had been actually sold to and acquired by the Securities Company, that this property (stock) was no longer in existence and could not be restored or returned in kind; that the decree of the trial court does not afford evidence in support of the complainants' bill; that, on the contrary, this decree expressly recognizes the Northern Securities Company as having title to the railway stocks it holds, and the right to distribute them ratably among its stockholders; and that the equities of the stockholders of the Securities Company forbid a restoration of the status quo, even if it were possible to do so, which it is not. The Securities Company also put in evidence depositions of Harriman, Nichols, Hill, and others, chiefly containing facts which have been presented in the earlier chapters of this monograph; as well as the proceedings in court of Chancery of New Jersey, being the case of the Continental Securities Company against the Northern Securities Company.72 Together, all the briefs of argument and authorities relating to the preliminary injunction amounted to nearly 800 printed pages.

71 39 and 40.

72 39:71-98.

The preliminary injunction asked for was granted, following the hearings of May 20-23, in the circuit court of the United States for the district of New Jersey, by Justice Bradford, July 15, 1904.78 Justice Bradford stated that the relief prayed for in the petition or bill was in some particulars broader than that granted in the final decree of the trial court. He thought this to be not without significance, "although it is unnecessary now to discuss the point" With respect to some of the alleged facts, important in their bearing upon the equities of the case, the affidavits and exhibits were characterized as conflicting on substantial points, and "the final decision necessarily will involve the consideration of grave, novel and delicate questions of law." The judge did not think the case "ripe for a final decision," the present application being for a preliminary injunction." The granting of a preliminary injunction will not interfere with the operation of the Northern Pacific Railway Company and the Great Northern Railway Company, or either of them, or otherwise prove detrimental to the interests of the public. While it would deprive stockholders for some time from receiving dividends, ample bonds can be provided for their protection.75 An actual distribution on the pro rata plan, leaving only one per cent of the par value of the outstanding stock of the Northern Securities Company, or $3,954,000, consisting wholly, or practically wholly of property other than stock of both or either of the two railway companies 76 would not only debar the Harriman interests from any relief to which they may be entitled under their present bill, but to a moral certainty entail upon them a burdensome multiplicity of suits attended with great labor and expense." It would also obviously be calculated to hinder, embarrass, and probably or possibly defeat them in their effort to recover large quantities of such stock from persons purchasing the same in good faith and for full consideration, directly or indirectly, from the stockholders of the Northern Securities Company participating in such pro rata distribution, through the creation of new equities on the part of such

73 41.

74 41:20.

75 41:25.

76 41: 33.

71 41:26.

purchasers. Whatever action is now taken, it should leave the Harriman interests in a position to enjoy the fruits of their victory in case the final decree should ultimately be determined in their favor. Furthermore, "it is manifestly improper that these matters should be decided on the fragmentary and inconclusive evidence now before the court. *

79

This court, as a court of equity, has power so to mold its decrees and to impose such terms as may be necessary to protect the equities of persons who may be affected by its action. * * * Under the circumstances, this court would not be justified in refusing the injunction sought. * * An interlocutory decree for a preliminary injunction may be prepared and submitted."78 The order for the injunction was entered August 18, 1904, from which an appeal was taken to the circuit court of appeals for the third circuit. On January 3, 1905, the court of appeals reversed the injunctional order, and thereupon an application was made to the supreme court of the United States for the writ of certiorari, which was granted on January 30, and the matter advanced for hearing, and heard March 1 and 2. The supreme court announced the affirmance of the decree of the circuit court of appeals on March 6, 1905, it being added that an opinion would be filed afterwards.80

While the documents in the case before the circuit court of appeals and the United States supreme court were not nearly so voluminous as the records and documents in the earlier cases, they are nevertheless of generous proportions. The second amended bill of complaint covered nearly 450 large printed pages and the briefs in each of the two last cases exceeded 600 pages. In view of the somewhat detailed analysis of the earlier documents which has been presented, these later documents may be passed over with only such notice as may be incidental to the presentation of the main points in the decision of the supreme court which finally terminated this many-sided legal contest. The history of the formation of the Northern Securities Company is recited briefly in several of the later documents, especially in the bill of complaint.81

78 41: 36-37.

79 42: 10.

80 49: 2, 14.

81 35.

་་སཾ.

CHAPTER IX.

THE FINAL DECISION OF THE SUPREME COURT.

The final decision, as was stated above, was rendered on March 6, 1905. Generally speaking it upheld every important contention of the Northern Securities Company, and the Company has since distributed its stock in accordance with the plan adopted by its stockholders at the meeting of April 21, 1905. Chief Justice Fuller delivered the opinion of the court; and, unlike the decision of March 14, 1904, there were no dissenting opinions.

Taking up the chief contention of the Harriman party, that the Northern Securities Company did not become owner of the Northern Pacific shares, but simply trustee or bailee, and that this claim is justified by the decree of April 9, 1903, the decision of the trial court, Chief Justice Fuller says that the Harriman interests "were not parties of record to that suit, and that they were not parties by representation, if the effect of the transfer as between the parties thereto had been an issue and the vital conflict between complainants and the corporation, now set up, then existed, which would destroy community of interest on which the rule of representation is founded. And, on the other hand, in that suit the Northern Securities Company, at a time when complainant Harriman was a director, answered that: 'Every share of the Great Northern Company and the Northern Pacific Company acquired by this defendant has been, and so long as it remains the property of the defendant will continue to be, held and owned by it in its own right, and not under any agreement, promise, or understanding on its part, or on the part of its stockholders and officers, that the same shall be held, owned or kept by it for any period of time whatever, or under any