Before LUMBARD, WATERMAN and FRIENDLY, Circuit Judges.
Opinion of November 2, 1959, on the merits in Docket 25793.
The question here is whether a railroad subject to § 20a of the Interstate Commerce Act, 49 U.S.C.A. § 20a, can lawfully provide by agreement for significant changes in the rights and privileges of holders of 27% of its preferred stock without having obtained authorization from the Interstate Commerce Commission under § 20a(2).*fn1 We hold it cannot.
The question arises as follows: In August and October, 1955, the New York, New Haven & Hartford Railroad Company sustained extensive hurricane and flood damage. In an effort to raise funds required for repairs the New Haven management sought a $10,000,000 bank loan, which was to be guaranteed by the United States pursuant to § 302 of the Defense Production Act of 1950, 64 Stat. 798, 801, as amended, 50 U.S.C.A.Appendix, § 2092. The New Haven's charter required that such a loan be approved by the affirmative vote of two-thirds of the shares of its preferred stock considered as one class and of a majority of all the preferred and common shares considered as another. The management gave notice of a special meeting of the New Haven's stockholders to vote such approval.
After the notice was mailed, Amoskeag Company and the Dumaine family, owning 76,570 of the 491,540 shares of preferred, asked that the stockholders' approval be conditioned upon a proviso that the New Haven should not declare or pay any dividend on its common stock so long as the proposed loan remained unpaid. The New Haven's management then abandoned the proposed special meeting. It did this on the basis of a professed belief that Amoskeag, the Dumaine family, and other holders of preferred who normally voted with them could block the needed two-thirds vote of the preferred if the proviso were not included and that the needed majority vote of the preferred and common considered as one class could not be attained if it were.
The New Haven management thereupon entered into negotiations with a banking group to have the latter acquire the preferred shares owned by Amoskeag, the Dumaine family and others allied with them. These negotiations led to an agreement, dated November 10, 1955, between the New Haven and Union Securities Corporation on behalf of the banking group.The agreement provided that the banking group would purchase from specified sellers not less than 120,000 nor more than 140,000 shares of New Haven preferred stock at a price ultimately fixed at $60 per share. The New Haven agreed that it would declare a $5 dividend for 1955 on the preferred not later than April 1, 1956, and that the purchasers should have the right to sell, or, in the language of the market, to "put" to the New Haven on and after November 18, 1957, and prior to December 18, 1957, all of the preferred stock purchased by them, less any stock sold in accordance with the agreement, at a price $10 above the purchase price. During the same period the New Haven could "call" on the purchasers to sell the stock to the New Haven at the same price. The "put" to the New Haven was buttressed by a provision that if "for any reason such right should not, in the opinion of counsel for the Purchasers, be immediately enforceable in accordance with its terms, or if, for any reason, the New Haven shall fail to purchase the Preferred Stock," the purchasers might sell the stock and hold the New Haven liable for the difference between the agreed repurchase price and what was realized. The purchasers also agreed that prior to November 18, 1957, they would not sell any of the preferred stock without the approval of the New Haven, and that if they sold any of it at such prices that the net proceeds exceeded the amount payable by the New Haven under its "call," they would pay such excess to the New Haven.
The agreement was consummated on November 18, 1955. The seven members of the banking group purchased 131,385 shares of the New Haven's preferred stock at $60 per share. They received "stock certificates registereedd in the names of the several purchasers" bearing specified certificate numbers. And the New Haven delivered to Union Securities on behalf of the group an instrument granting the "put" relating to these specific shares required by the November 10 agreement and providing that all other provisions of that agreement should continue in full force and effect.
The New Haven then gave another notice of a special meeting of stockholders to vote on the proposed $10,000,000 loan. The proxy statement disclosed the facts summarized above. The necessary stockholder approval was given, and the loan was made with authorization of the Interstate Commerce Commission.
By the spring of 1956 it had become apparent that the New Haven required additional funds to repair the flood damage. As a condition to securing an additional loan the New Haven was required to and did obtain a modification of the agreement with the banking group. This modification included a waiver of the New Haven's obligation to pay a $5 dividend on its preferred stock for 1955; a two-year postponement of the period of the put;*fn2 a change so that both the put and the call should apply to all or any part of the total amount of stock held by the group; an acceleration of one year in the period for the call; and a provision that if the put or call should be exercised after repayment of the proposed loan and prior to payment of the $5 dividend for 1955, the put or call price should be $75 rather than $70 per share.
The New Haven did not seek authorization of the Interstate Commerce Commission to enter into these agreements. However, on November 29, 1955, the New Haven's Vice President-Treasurer, its Vice President-Law, and another attorney conferred with the chairman of the Interstate Commerce Commission's Finance Division and the Director of the Commission's Bureau of Finance with respect to the proposed $10,000,000 loan. The agreements between the New Haven and the banking group were disclosed to the Commission officials and copies were given them. The Vice President-Law informed them that the New Haven did not intend to apply for Commission approval of the agreements under § 20a because he did not think it was required, that for this reason he was not filing the contracts officially, but that the New Haven desired the Commission to know about the transaction.
On March 13, 1956, the Commission issued a press release announcing that it would "institute an inquiry concerning agreements entered into recently by the New York, New Haven & Hartford Railroad Company whereby it undertook to repurchase certain of its outstanding securities, and concerning the accounting practices of that carrier to determine whether there has been any violation of the Commission's regulations or of the statutes administered by it, or any practices indulged in which are contrary to the best interests of the carrier or of the public." The record is not very informative as to the course of this "inquiry." Apparently no docket number was assigned, no hearings were held, no briefs filed or arguments made, and the inquiry was concluded without order of any sort. Our best information regarding it comes from the Commission's report in New York, New Haven & Hartford R. R. Loan Guarantee, 307 I.C.C. 105, 112 (1959). This states that the inquiry revealed certain accounting irregularities for the years 1954, 1955, and 1956; that these irregularities were corrected through administrative action taken by the Commission; that the new management took steps to comply with the Commission's accounting regulations in the future; and that "The aforementioned informal inquiry was closed late in 1956."*fn3
On November 17, 1958, the United States, suing on behalf of the Interstate Commerce Commission pursuant to 49 U.S.C.A. § 12(1), brought this action in the Southern District of New York. It sought a declaratory judgment that the agreement between the New Haven and the banking group with respect to the preferred stock was unlawful and void, since authorization by the Commission under § 20a(2) of the Interstate Commerce Act was required and had not been obtained, and a decree enjoining the defendants from carrying it out. The New Haven did not defend, and our references to "defendants" or "appellees" will relate to the banking group.
The defendants moved to dismiss the complaint under F.R. 12(b) or in the alternative to enter judgment on the pleadings under F.R. 12(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The government countered with motions for a preliminary injunction and for summary judgment, these being supported by certificates and statements from the Secretary of the Commission. The New Haven submitted affidavits setting forth the November 29, 1955, conference with the Commission officials and annexing the report of the Commission cited above in the margin (Footnote 3). Considering the defendants' motions as for summary judgment, the Court (McGohey, J.), in a brief opinion, granted the motions of defendants and denied those of the government. Later the Court entered the judgment embodying this action and dismissing the complaint from which this appeal is taken. While the problem is difficult and the case one of first impression, we have concluded that the District Court was in error and that the government is entitled to the relief sought.
On brief the government based its case in part on a claim that the agreement between the New Haven and the banking group constituted an "evidence of * * * indebtedness." The government did not press this contention in argument.We think it was wise in not doing so. For "indebtedness is merely the state of being in debt" and debt "means a sum of money due by certain and express agreement [citations] and does not include liabilities which are contingent in that it is uncertain as to whether anything will ever be demandable under the contract." Sharpe v. First National Bank, 1936, 220 Wis. 506, 264 N.W. 245, 247. Moreover, as developed below, the Commission has held that an evidence of indebtedness is not within § 20a(2) unless it is in transferable form.
In order to prevail, therefore, the government must show that the transaction here under attack came within the provision of § 20a(2) requiring Commission approval "for any carrier to issue any share of capital stock."
The New Haven did not here "issue" additional preferred stock in the sense in which "issue" is used in corporation law. The preferred stock was issued in 1947, pursuant to authorization granted by the Commission, 267 I.C.C. 867. However, it is far too late to argue that amendments of the terms of stock, bonds or notes, which are not "issues" in the corporation law sense, are not "issues" within § 20a(2). From the enactment of § 20a in 1920, the Commission has repeatedly asserted jurisdiction over changes in the terms of securities already "issued." The Commission's decisions to this effect are legion, and the series is unbroken. Among the changes in the terms of securities which the Commission has considered to be within § 20a(2) are extensions of maturity dates of notes and bonds,*fn4 changes of interest rates on bonds and notes,*fn5 and changes in the dividend rate of preferred stock.*fn6 The reasons behind this settled construction are obvious. The difference between a change in the terms of an outstanding security and its retirement and reissue is largely formal; and Congress could not have intended the Commission to be placed in a position where securities that the Commission had authorized on the basis of particular terms and conditions could be changed into quite different ones without its approval. Relying in part on "the long settled practice of the [Interstate Commerce] Commission in upholding its jurisdiction over securities, the maturity of which is extended," this Court has sustained a decision of the Securities and Exchange Commission that an extension of "investment certificates" of a public utility holding company was within § 6(a) of the Public Utility Holding Company Act, 15 U.S.C.A. § 79f(a), making it unlawful for any registered holding company to "issue or sell any security of such company" except in accordance with a declaration and order under § 7 (15 U.S.C.A. § 79g). The Court said that "To treat the proposed arrangement as beyond the jurisdiction of the Securities and Exchange Commission would seem to place form above substance and to defeat the statutory purpose of safeguarding the public interest by affording the means of investigating the merits of such transactions by the Commission so that issues of securities may be stopped if found inexpedient for the securityholders." SEC v. Associated Gas & Electric Co., 2 Cir., 1938, 99 F.2d 795, 797, 798.Appellees do not succeed in distinguishing Associated Gas on the basis of the broader definition of "security" in § 2(a) (16) of the Holding Company Act, 15 U.S.C.A. § 79b(a) (16); for there the question was not whether the certificates were a "security" but whether their extension was an "issue or sale."
Indeed, appellees do not seriously question that if the same rights conferred upon them by the various agreements had been conferred upon all the preferred stockholders as a result of amendment of the New Haven's charter, authorization by the Commission under § 20a would have been required.*fn7 In our view, however, the applicability of § 20a(2) to a substantial change in the rights and obligations of a carrier and its stockholders does not depend on the particular method employed to effect the change. If the New Haven had invited preferred stockholders to accept new terms and to evidence their assent by depositing their stock with an agent designated by the New Haven for that purpose, this would have required Commission approval, even though the New Haven's charter was not altered and non-assenters were not affected. Indeed, that was precisely the case before this Court in Associated Gas. We see no reason for a different result because here the New Haven, dealing with only a few stockholders who owned large blocks of preferred, was able to change the terms of that stock by simpler means.
Appellees place much reliance on claim that what we have before us is a mere "executory agreement." We find no magic in the word "executory." Most preferred stock provisions, with respect to dividends, sinking funds, voting rights and the like, are to be performed in the future. Whatever the words, the facts are that if the agreements here are valid, the New Haven has become obligated in respect of appellees' shares for a sum nearly as great as the $10,000,000 flood loan which triggered this transaction, and appellees' shares are worth $75 whereas the current market value of shares not having the benefit of the agreements is around $12. Clearly appellees' shares have been changed under the highly practical tests of the marketplace. We think it would indeed be "to place form above substance and to defeat the statutory purpose" if, in the absence of other considerations that ought to lead us to that end, we were to say that an agreement having so great an economic effect did not modify the stock held by appellees. Concededly, the present case is a close one. But, in the absence of administrative construction supporting appellees' contentions, we prefer a construction of § 20a of the Interstate Commerce Act that gives effect to its remedial purposes to give "the commission control over stock and bond issues" in order to avoid for the future abuses in the issuance of securities whereby "railroad properties have been bankrupted or saddled with almost overwhelming burdens of indebtedness, which have not increased the amount or value of property devoted to the public service, have not improved the service rendered, and have on the whole had the effect of increasing the charges for service,"*fn8 rather than an interpretation, no more reasonable, that would frustrate them. For we must read statutes "not as theorems of Euclid but with some imagination of the purposes which lie behind them." Lehigh Valley Coal Co. v. Yensavage, 2 Cir., 1914, 218 F. 547, 553, certiorari denied, 1915, 235 U.S. 705, 35 S. Ct. 282, 59 L. Ed. 434.
We turn therefore to appellees' contentions that there is an established administrative construction in their favor:
(1) Appellees argue that the Commission's administrative construction of "issue" to include amendments has related only to amendments evidenced by physical stamping of the securities as distinguished from modifications evidenced only by agreement. But the government has cited a number of cases to the contrary,*fn9 and we think the Commission has properly regarded the question as being whether rather than how the terms of the securities were changed. The report in Fonda, Johnstown & Gloversville R.R. Bonds, 180 I.C.C. 249 (1932), relied on by the District Court, will not carry the weight that appellees put upon it. There the carrier applied for approval of (1) an extension of bonds to be evidenced by stamping or printing a legend of amendment on the bonds, detaching sheets of coupons and attaching new sheets, and (2) an agreement for the deposit of assenting bonds with the mortgage trustee who was to perform these acts. The Commission approved the application for amendment of the bonds but dismissed the application for approval of the agreement as not within Section 20a. Since in that case the bonds themselves were to be altered, the Commission evidently regarded the request for approval of the agreement as surplusage. We do not read the report in Fonda as meaning that if the agreement, rather than the physical altering of the bonds, had been the legally operative act, the Commission would have declined jurisdiction over it; and any such ruling would have run counter both to reason and to the practice embodied in the decisions cited in Footnote 9.
(2) Appellees place heavy reliance on Commission decisions holding § 20a inapplicable to various types of agreements imposing financial obligations on carriers. Among these are decisions holding the section inapplicable to contracts which evidenced indebtedness but did not take the form of bonds or notes, e. g., equipment purchase contracts, Louisiana Ry. & N. Co., 67 I.C.C. 808 (1921); conditional sale contracts not evidenced by notes or bonds, Lehigh Valley R.R. Conditional Sale Contract, 233 I.C.C. 359 (1939); a contract to finance purchases assigned to a bank, Gulf, Mobile & Ohio R.R. Purchase, 261 I.C.C. 405 (1945); and other forms of indebtedness not evidenced by a note or bond, Grand Trunk Western Ry. Indebtedness, 70 I.C.C. 554 (1921), Davidson Transfer and Storage Co., First Mortgage, 282 I.C.C. 521 (1952). We do not regard these decisions as apposite except to the government's claim, which we have rejected, that the agreements here in question required approval as "evidence of * * * indebtedness." The Commission has also held that authorization under § 20a(2) is not required when a carrier issues stock purchase warrants, Norfolk Southern R.R., 240 I.C.C. 99 (1940), Western Maryland Ry. Stock, 295 I.C.C. 100 (1955). But we do not view these decisions (which may well rest on the fact that § 20a(2) speaks only of the issuance of "any share of capital stock or any bond," whereas the later acts, cited below, expressly include a "warrant or right to subscribe to or purchase, any of the foregoing") as any abdication of the need for Commission approval of an agreement modifying an existing stock or bond. Appellees are quite right in saying that, in enacting § 20a, Congress did not grant the Commission general power to pass judgment on all obligations incurred by railroads and that, in this early essay in Federal security regulation, Congress did not enact so comprehensive a definition of "security" as it later did in the Securities Act of 1933, 15 U.S.C.A. § 77b(1), the Securities Exchange Act of 1934, 15 U.S.C.A. § 78c(a) (10), and the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79b(a) (16). But neither of these facts weakens the requirement for Commission authorization of agreements to alter those securities over which Congress did give the Commission jurisdiction, admittedly including preferred stock.
(3) Appellees claim that in its annual reports to the Congress the Commission has conceded that § 20a(2) did not cover agreements such as those here before us and has recommended that its jurisdiction be expanded to include them, and that Congress has not seen fit to respond.
In fact, two different recommendations by the Commission are involved. On the view that we take of the case, neither is relevant.
The first recommendation appears in the Annual Reports for 1937, 1938, 1943, and 1944, 51 I.C.C. Ann.Rep. 105 (1937); 52 I.C.C. Ann.Rep. 121 (1938); 57 I.C.C. Ann.Rep. 132-33 (1943); 58 I.C.C. Ann.Rep. 105 (1944). This stemmed from the Commission's investigation of the bankruptcy of the very carrier here before us, New York, N. H. & H. R.R., 220 I.C.C. 505 (1937).Referring back to its earlier inquiry, New England Investigation, 27 I.C.C. 560 (1913), the Commission advised Congress that for the second time the New Haven had plunged itself into serious financial difficulties by expending its founds for non-railroad property and interests in other railroads in a manner that the Commission was powerless to prevent. It was to enable itself to control such extra-curricular expenditures in the future that the Commission asked "that restrictions be imposed on the expenditure of carrier funds, the incurring of obligations, or the acquiring of property by a carrier or its subsidiaries, except for the operation or legitimate improvement or development of its property." We find nothing in this to indicate a belief by the Commission that it lacked authority under § 20a to prevent a carrier from altering its obligations with respect to its own securities.
The second recommendation, found in the Annual Reports from 1952 through 1955, 66 I.C.C. Ann.Rep. 147 (1952), 67 I.C.C. Ann.Rep. 147 (1953), 68 I.C.C. Ann.Rep. 128 (1954), 69 I.C.C. Ann.Rep. 124 (1955), was that Congress reverse the result reached by the Commission in Lehigh Valley R.R. Conditional Sale Contract, supra, that "evidence of * * * indebtedness" did not include indebtedness under a conditional sale not evidenced by a bond or note, and include in § 20a(2) "any contract for the purchase or lease of equipment not to be fully performed within 1 year from the date of the contract." This is irrelevant for reasons developed above.
(4) Appellees' final and, we think, most serious contention on administrative construction relates to the Commission's conduct in this very case. They assert that the Commission's three years of inaction after full disclosure of the agreements in November 1955, save only for the institution in March 1956 of the inquiry that was closed late that year, brings the case within United States v. Chicago, North Shore & Milwaukee R.R., 1933, 288 U.S. 1, 53 S. Ct. 245, 77 L. Ed. 583, where the Supreme Court found the Commission had established an administrative construction of non-applicability of § 20a so definitive as to forbid a change. While we in no way condone the long delay by the Commission in making its challenge to the instant agreements, a delay that may well prove to have been seriously prejudicial to appellees because of the decline in the market value of the New Haven preferred, the facts here are a long way from those which there led the Supreme Court to find a clear "case of uniform administrative construction of section 20a as applied to this company." 288 U.S. at page 13, 53 S. Ct. at page 248.
In North Shore, the United States, at the request of the Commission, sought to enjoin the carrier from issuing securities without Commission authorization. The North Shore answered that it was an "interurban electric railway which is not operated as a part of a general steam railroad system of transportation" and thereby exempted from § 20a(1). The record showed that from the enactment of § 20a in 1920 the Commission had never previously challenged the North Shore's claim to the exemption; that during that period the North Shore had issued $61,662,600 of securities without Commission authorization; that the annual reports filed by the North Shore with the Commission had fully disclosed the character of its operations and the issuance of these securities, and had stated that the latter were issued with the authority of the regulating commissions of Wisconsin and Illinois; that in one instance the North Shore had failed to include this statement and on inquiry from the Commission had supplied it; and that the Director of the Commission's Bureau of Finance had formally advised the North Shore that it came within the narrower exemption for interurban electric railways in the then § 15a of the Interstate Commerce Act.The Court's opinion recites also that, in a series of Annual Reports to Congress, for 1921, 1923, 1924 and 1925, the Commission had called attention to its lack of jurisdiction under § 20a over the securities of independent interurban electric railways which, like the North Shore, were "engaged in the general transportation of freight in interstate commerce in addition to the transportation of passengers," some of which "correspond substantially to steam roads in all important particulars except that of motive power," although § 15a included "such interurban electric lines as are engaged in the general transportation of freight" even though independent, and had asked that § 20a be amended; that in its 1928 report the Commission made a specific proposal for narrowing the § 20a exemption; and that Congress had consistently refused to act. Moreover, the North Shore did not stand alone. The Commission had equally failed to challenge the exemption of other independent interurban electric railways whose operations were generally similar to the North Shore, and in one instance had formally disclaimed jurisdiction over such a line under the identical language of § 1(22), Proposed Acquisitions by Cincinnati, Hamilton & Dayton Ry. Co., 154 I.C.C. 603 (1929).*fn10 The Supreme Court thus had ample evidence for concluding that the Commission's dozen years of failure to enforce § 20a against the North Shore and similar carriers represented not oversight or indecision but an administrative determination quite as definite as if embodied in a formal ruling.
Here we have no such adequate evidence. We have only an isolated transaction, an inconclusive discussion, an abortive inquiry, and then two years of silence. It is possible, of course, that silence here meant assent - by someone; but we cannot find a sufficiently clear basis for inferring from what the Commission did and did not do an administrative construction that was never expressed. If 60 years of Commission failure to consider maintenance-of-way vehicles to be within the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., was not sufficient evidence for the Supreme Court to infer an administrative determination, Baltimore & Ohio R. Co. v. Jackson, 1957, 353 U.S. 325, 330-331, 77 S. Ct. 842, 1 L. Ed. 2d 862, we cannot hold three years of inaction eked out by an informal inquiry to be enough.
Appellees were not obliged to rely on so infirm a foundation. They could have required the New Haven to apply under § 20a for approval of the agreement while at the same time moving to dismiss the application for want of jurisdiction, see Lehigh Valley R.R. Conditional Sale Contract, supra, and Davidson Transfer and Storage Company, supra, or they could themselves have sought a declaratory order under § 5(d) of the Administrative Procedure Act, 5 U.S.C.A. § 1004(d). No serious delay need have resulted; for the Commission normally acts on finance applications with relative promptness.
We have dealt with appellees' contention as to the Commission's action and inaction in terms of administrative construction rather than of estoppel, since that is the basis on which appellees have argued.In any event the applicability of the doctrine of estoppel to regulatory agencies is, to say the least, doubtful. See SEC v. Morgan Lewis & Bockius, 3 Cir., 1953, 209 F.2d 44, 49.
Appellees appear at times to suggest that although no single one of the four contentions as to administrative construction which we have just reviewed may be conclusive, the combination is. However, we have found that appellees' first contention is not made out and that the second and third deal with matters which are irrelevant to the only government contention that we sustain. Consequently we are left only with the fourth. This we deem insufficient, for the reasons set forth above.
Appellees assert that in no previous case has the Commission or a court applied Section 20a to a transaction such as that here before us. The government does not dispute this but answers there are also none where the Commission or a court has refused to do so. Under these circumstances the mere fact of novelty does not show where the path of correct decision lies. The problem of interpreting statutes is inevitably one of applying old terms to new situations. Our task is to determine whether, if Congress had envisioned this case, it would have wished to require Commission authorization before a railroad undertook new obligations to stockholders such as those which the New Haven has assumed, and, if so, whether the words that it used were sufficient to express that desire and thereby give fair warning to those who read them. We entertain no doubt in giving an affirmative answer to the former question; and we think that, once "issue" was broadened by nearly four decades of unquestioned administrative construction to include "alter" or "amend," the same answer must be given to the latter. For we must construe § 20a, as the Supreme Court has construed the Securities Act, in the light of "* * * the doctrine that courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of words fairly permits so as to carry out in particular cases the generally expressed legislative policy." SEC v. C. M. Joiner Leasing Corp., 1943, 320 U.S. 344, 350-351, 64 S. Ct. 120, 123, 88 L. Ed. 88.
The District Court ought therefore have granted the government's motion for summary judgment and denied the motions of the banking group, and it should now do so. In order to protect the rights of appellees in the event that rehearing or certiorari should be sought and granted and our judgment reversed, the injunction should contain an exception permitting any or all members of the group, if so advised, to give notice of the exercise of their put during the period between November 18 and December 18, 1959. In view of the short time remaining before November 18, 1959, when the put becomes exercisable, the mandate shall issue on November 10, 1959, unless, if the banking group desires to apply ...