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Bove v. Community Hotel Corp. of Newport, R. I. OPINION*37 JOSLIN, Justice.This civil action was brought in the superior court to enjoin a proposed merger of The Community Hotel Corporation of Newport, Rhode Island, a defendant herein, into Newport Hotel Corp. Both corporations were organized under the general corporation law of this state and are hereinafter referred to respectively as ‘Community Hotel’ and ‘Newport.’ No oral testimony was presented and a trial justice sitting**91 without a jury decided the case on the facts appearing in the exhibits and as assented to by the parties in the pretrial order. The case is here on the plaintiffs' appeal from a judgment denying injunctive relief and dismissing the action.
Community Hotel was incorporated on October 21, 1924, for the stated purpose of erecting, maintaining, operating, managing and leasing hotels; and it commenced operations in 1927 with the opening of the Viking Hotel in Newport. Its authorized capital stock consists of 6,000 shares of $100 par value six per cent prior preference cumulative preferred stock, and 6,000 shares of no par common stock of which 2,106 shares are issued and outstanding. The plaintiffs as well as the individual defendants are holders and owners of preferred stock, plaintiffs having acquired their holdings of approximately 900 shares not later than 1930. At the time this suit was commenced, dividends on the 4,335 then-*38 issued and outstanding preferred shares had accrued, but had not been declared, for approximately 24 years, and totalled about $645,000 or $148.75 per share.
Newport was organized at the instance and request of the board of directors of Community Hotel solely for the purpose of effectuating the merger which is the subject matter of this action. Its authorized capital stock consists of 80,000 shares of common stock, par value $1.00, of which only one share has been issued, and that to Community Hotel for a consideration of $10.
The essentials of the merger plan call for Community Hotel to merge into Newport, which will then become the surviving corporation. Although previously without assets, Newport will, if the contemplated merger is effectuated, acquire the sole ownership of all the property and assets now owned by Community Hotel. The plan also calls for the outstanding shares of Community Hotel's capital stock to be converted into shares of the capital stock of Newport upon the following basis: Each outstanding share of the constituent corporation's preferred stock, together with all accrued dividends thereon, will be changed and converted into five shares of the $1.00 par value common stock of the surviving corporation; and each share of the constituent corporation's no par common stock will be changed and converted into one share of the common stock, $1.00 par value, of the surviving corporation.
Consistent with the requirements of G.L.1956, s 7-5-3,[FN1] *39 the merger will become effective only if the plan receives the affirmative votes of the stockholders of each of the corporations representing at least two-thirds of the shares of each class of its capital stock. For the purpose of obtaining the required approval, notice was given to both common and preferred stockholders of Community Hotel that a special meeting would be held for the purpose of considering and voting upon the proposed merger. Before the scheduled meeting date arrived, this action was commenced and the meeting was postponed to a future time and place. So far as the record before us indicates, it has not yet been held.
FN1. Section 7-5-3 in pertinent part provides:‘Said agreement shall be submitted to the stockholders of each constituent corporation at a meeting thereof called separately for the purpose of taking the same into consideration. * * * At said meeting said agreement shall be considered and the stockholders of said corporation shall vote by ballot, in person or by proxy, for the adoption or rejection of the said agreement, each share entitling the holder thereof to one (1) vote, and if the votes of the stockholders of each such corporation representing at least two-thirds of the shares of each class of its capital stock shall be for the adoption of said agreement * * * the agreement so adopted and certified * * * shall thence be taken and deemed to be the agreement and act of consolidation or merger of said corporations * * *.’ The plaintiffs argue that the primary, and indeed, the only purpose of the proposed merger is to eliminate the priorities of the preferred stock with less than the **92 unanimous consent of its holders. Assuming that premise, a preliminary matter for our consideration concerns the merger of a parent corporation into a wholly-owned subsidiary created for the sole purpose of achieving a recapitalization which will eliminate the parent's preferred stock and the dividends accumulated thereon, and whether such a merger qualifies within the contemplation of the statute permitting any two or more corporations to merge into a single corporation.
It is true, of course, that to accomplish the proposed recapitalization by amending Community Hotel's articles of association under relevant provisions of the general corporation law[FN2] would require the unanimous vote of the preferred*40 shareholders, whereas under the merger statute, only a two-third vote of those stockholders will be needed. Concededly, unanimity of the preferred stockholders is unobtainable in this case, and plaintiffs argue, therefore, that to permit the less restrictive provisions of the merger statute to be used to accomplish indirectly what otherwise would be incapable of being accomplished directly by the more stringent amendment procedures of the general corporation law is tantamount to sanctioning a circumvention or perversion of that law.
FN2. Section 7-2-18, as amended, provides that a corporation may ‘* * * from time to time when and as desired amend its articles of association * * *’ and s 7-2-19, as amended, provides that ‘Unless otherwise provided in the articles of association, every such amendment shall require the affirmative vote of the following proportion of the stockholders, passed at a meeting duly called for the purpose:‘(a) * * *‘(b) Where the amendment diminishes the stipulated rate of dividends on any class of stock or the stipulated amount to be paid thereon in case of call or liquidation, the unanimous vote of the stockholders of such class and the vote of a majority in interest of all other stockholders entitled to vote.’ The question, however, is not whether recapitalization by the merger route is a subterfuge, but whether a merger which is designed for the sole purpose of cancelling the rights of preferred stockholders with the consent of less than all has been authorized by the legislature. The controlling statute is s 7-5-2. Its language is clear, all-embracing and unqualified. It authorizes any two or more business corporations which were or might have been organized under the general corporation law to merge into a single corporation; and it provides that the merger agreement shall prescribe ‘* * * the terms and conditions of consolidation or merger, the mode of carrying the same into effect * * * as well as the manner of converting the shares of each of the constituent corporations into shares or other securities of the corporation resulting from or surviving such consolidation or merger, with such other details and provisions as are deemed necessary.'[FN3] (italics ours) *41 Nothing in that language even suggests that the legislature intended to make underlying purpose a standard for determining permissibility. Indeed, the contrary is apparent since the very breadth of the language selected presupposes a complete lack of concern with whether the merger is designed to further the mutual interests of two existing and nonaffiliated corporations or whether alternatively it is purposed solely upon effecting a substantial change in an existing corporation's capital structure.
FN3. The quoted provision is substantially identical to the Delaware merger statute (Del.Rev.Code (1935) C. 65, s 2091) construed in Federal United Corp. v. Havender, 24 Del.Ch. 318, 11 A.2d 331, infra pp. 93-94. [1]
 Moreover, that a possible effect of corporate action under the merger statute is not possible, or is even forbidden, under another section of the general corporation law is of no import, it being settled that the several sections of that law may have independent legal significance, and that the validity of corporate action taken pursuant to one section is not necessarily dependent upon its being **93 valid under another. Hariton v. Arco Electronics, Inc., 40 Del.Ch. 326, 182 A.2d 22, aff'd, 41 Del.Ch. 74, 188 A.2d 123; Langfelder v. Universal Laboratories Inc., D.C., 68 F.Supp. 209, aff'd, 3 Cir., 163 F.2d 804.[2]
We hold, therefore, that nothing within the purview of our statute forbids a merger between a parent and a subsidiary corporation even under circumstances where the merger device has been resorted to solely for the purpose of obviating the necessity for the unanimous vote which would otherwise be required in order to cancel the priorities of preferred shareholders. Federal United Corp. v. Havender, supra; Hottenstein v. York Ice Machinery Corp., 3 Cir., 136 F.2d 944; 7 Fletcher, Cyclopedia of Corporations, chap. 43, s 3696.1, page 892.[3]
A more basic problem, narrowed so as to bring it within the factual context of this case, is whether the right of a holder of cumulative preferred stock to dividend arrearages and other preferences may be cancelled by a statutory merger. That precise problem has not heretofore been before *42 this court, but elsewhere there is a considerable body of law on the subject. There is no need to discuss all of the authorities. For illustrative purposes it is sufficient that we refer principally to cases involving Delaware corporations. That state is important as a state of incorporation, and the decisions of its courts on the precise problem are not only referred to and relied on by the parties, but are generally considered to be the leading ones in the field.The earliest case in point of time is Keller v. Wilson & Co., 21 Del.Ch. 391, 190 A. 115 (1936). Wilson & Company was formed and its stock was issued in 1925 and the law then in effect protected against charter amendments which might destroy a preferred shareholder's right to accumulated dividends. In 1927 that law was amended so as to permit such destruction, and thereafter the stockholders of Wilson & Company, by the required majorities, voted to cancel the dividends which had by then accrued on its preferred stock. In invalidating that action the rationale of the Delaware court was that the right of a holder of a corporation's cumulative preferred stock to eventual payment of dividend arrearages was a fixed contractual right, that it was a property right in the nature of a debt, that it was vested, and that it could not be destroyed by corporate action taken under legislative authority subsequently conferred, without the consent of all of the shareholders.
Consolidated Film Industries, Inc. v. Johnson, 22 Del.Ch. 407, 197 A. 489 (1937), decided a year later, was an almost precisely similar case. The only difference was that Consolidated Film Industries, Inc. was not created until after the adoption of the 1927 amendment, whereas in the earlier case the statutory amendment upon which Wilson & Company purported to act postdated both its creation and the issuance of its stock. Notwithstanding the Keller rationale that an investor should be entitled to rely upon the law in existence at the time the preferred stock was *43 issued, the court in this case was ‘* * * unable to discover a difference in principle between the two cases.’ In refusing to allow the proposed reclassification, it reasoned that a shareholder's fixed contractual right to unpaid dividends is of such dignity that it cannot be diminished or eliminated retrospectively even if the authorizing legislation precedes the issuance of its stock.
Two years elapsed before Federal United Corp. v. Havender, supra, was decided. The issue was substantially the same as that in the two cases which preceded. The dissenting stockholders had argued, as might have been expected, that the proposed corporate action, even though styled a ‘merger,’ was in effect a Keller type recapitalization and was entitled to no different treatment. Notwithstanding that argument, the court did not refer to the preferred stockholder's right as ‘vested’ or as ‘a property right in the nature of a **94 debt.’ Neither did it reject the use of Keller-type nomenclature as creating ‘confusion’ or as ‘substitutes for reason and analysis' which are the characterizations used respectively in Davison v. Parke, Austin & Lipscomb, Inc., 285 N.Y. 500, 509, 35 N.E.2d 618, 622; Meck, Accrued Dividends on Cumulative Preferred Stocks; The Legal Doctrine, 55 Harv.L.Rev. 7, 76. Instead, it talked about the extent of the corporate power under the merger statute; and it held that the statute in existence when Federal United Corp. was organized had in effect been written into its charter, and that its preferred shareholders had thereby been advised and informed that their rights to accrued dividends might be extinguished by corporate action taken pursuant thereto.
Faced with a question of corporate action adjusting preferred stock dividends, and required to apply Delaware law under Erie R.R. v. Tompkins, 304 U.S. 64, 58 Sup.Ct. 817, 82 L.Ed. 1188, it is understandable that a federal court in *44 Hottenstein v. York Ice Machinery Corp., 3 Cir., 136 F.2d 944, 950, found Keller, Johnson and Havender irreconcilable and said,
‘If it is fair to say that the decision of the Supreme Court of Delaware in the Keller case astonished the corporate world, it is just to state that the decision of the Supreme Court in Havender astounded it, for shorn of rationalization the decision constitutes a repudiation of principles enunciated in the Keller case and in Consolidated Film Industries v. Johnson, supra.’ at 950.[FN4]
FN4. To the same effect the court in Western Foundry Co. v. Wicker, 403 Ill. 260, said at 277, 85 N.E.2d 722 at 730:‘Thus, what was formerly regarded as an almost inviolable vested property right was now considered a mere defeasible right, subject to cancellation by merger by reason of the consent of the preferred shareholders granted at the time the stock was originally issued. There being little or no difference between a recapitalization by corporate amendment and recapitalization by merger of a parent corporation with a wholly-owned subsidiary, the present status of the Keller case is obscure. While not expressly overruled, the theory of the Keller case was entirely repudiated. Consequently, as an authority for the proposition that the power to change the ‘rights' of preferred stock does not include the right to cancel unpaid cumulative dividends, Keller v. Wilson & Co. is highly questionable.’ With Keller's back thus broken, Hottenstein went on to say that under Delaware law a parent corporation may merge with a wholly-owned inactive subsidiary pursuant to a plan cancelling preferred stock and the rights of holders thereof to unpaid accumulated dividends and substituting in lieu thereof stock of the surviving corporation. Only four years intervened between Keller and Havender, but that was long enough for Delaware to have discarded ‘vested rights' as the test for determining the power of a corporation to eliminate a shareholder's right to preferred stock dividend accumulation, and to have adopted in its stead a standard calling for judicial inquiry into whether the proposed interference with a preferred stockholder's contract has been authorized by the legislature. The Havender approach is the one to which we subscribed as being the sounder, and it has support in the authorities. *45 Davison v. Parke, Austin & Lipscomb, Inc., supra; Langfelder v. Union Laboratories, Inc., 3 Cir., 163 F.2d 804; Western Foundry Co. v. Wicker, supra, note 4; Anderson v. International Minerals & Chemical Corp., 295 N.Y. 343, 67 N.E.2d 573; Hubbard v. Jones Laughlin Steel Corp., D.C., 42 F.Supp. 432; Donohue v. Heuser, 239 S.W.2d 238 (Ky).
The plaintiffs do not suggest, other than as they may have argued that this particular merger is a subterfuge, that our merger statute will not permit in any circumstances a merger for the sole reason that it affects accrued, but undeclared, preferred stock dividends. Rather do they argue that what should control is the date of the enactment of the enabling legislation, and they point **95 out that in Havender, Federal United Corp. was organized and its stock was issued subsequent to the adoption of the statute authorizing mergers, whereas in this case the corporate creation and the stock issue preceded adoption of such a statute. That distinguishing feature brings into question what limitations, if any, exist to a state's authority under the reserved power to permit by subsequent legislation corporate acts which affect the preferential rights of a stockholder. More specifically, it raises the problem of whether subsequent legislation is repugnant to the federal and state constitutional prohibitions against the passage of laws impairing the obligations of contracts, because it permits elimination of accumulated preferred dividends by a lesser vote than was required under the law in existence at the time of the incorporation and when the stock was issued.
The mere mention of the constitutional prohibitions against such laws calls to mind Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 4 Wheaton 518, 4 L.Ed. 629, where the decision was that a private corporation charter granted by the state is a contract protected under the constitution against repeal, amendment or alteration by subsequent legislation. Of equal significance in the field of corporation law is Mr. Justice*46 Story's concurring opinion wherein he suggested that application of the impairment clause upon acts of incorporation might be avoided if a state legislature, coincident with granting a corporate charter, reserved as a part of that contract the right of amendment or repeal. With such a reservation, he said, any subsequent amendment or repeal would be pursuant, rather than repugnant, to the terms of the contract and would not therefore impair its obligation.
Our own legislature[FN5] was quick to heed Story's advice, and in the early part of the 19th century, when corporations were customarily created by special act, the power to alter, amend, or revoke was written directly into each charter. Later, when the practice changed and corporations, instead of being created by special enactment, were incorporated under the general corporation law, the power to amend and repeal was reserved in an act of general application, and since at least as far back as 1844[FN6] the corporation law has read in substance as it does today viz., ‘* * * The charter or articles of association of every corporation hereafter created may be amended or repealed at the will of the general assembly.’ Section 7-1-13.
FN5. State v. Brown & Sharpe Mfg. Co., 18 R.I. 16, 25 A. 246, 17 L.R.A. 856, contains a detailed discussion of the Dartmouth College case, the concurring opinion of Mr. Justice Story and the impact of each upon subsequent legislative enactments affecting corporations. FN6. Revision of Public Laws 1844, page 64. The language in which the reserved power is customarily stated is not, however, self-explaining, and the extent of the legislative authority under it has frequently been a source of difficulty. Recognizing that problem, but not answering it, the United States Supreme Court said in a frequently quoted passage:
‘The authority of a state under the so-called reserve power is wide; but it is not unlimited. The corporate charter may be repealed or amended, and, within limits not now necessary to define, the interrelations of state, *47 corporation and stockholders may be changed; but neither vested property rights nor the obligation of contracts of third persons may be destroyed or impaired.’ Coombes v. Getz, 285 U.S. 434, 441-442, 52 S.Ct. 435, 436, 76 L.Ed. 866, 871.
[4]
[5] The problem is not novel in this court. In State v. Brown & Sharpe Mfg. Co., supra, note 5, we said that the reservation of the power to alter or amend does not confer upon the state arbitrary control over the rights and property belonging to a body of corporators. Additionally, relying on **96 Shields v. Ohio, 95 U.S. 319, 24 L.Ed. 357, we adopted as a ‘just and proper’ rule that amendments or alterations proposed under the power, if they are to satisfy the constitutional requirement, must be reasonable, must be in good faith, and must not be inconsistent with the scope and object of the act of incorporation.The plaintiffs go further than Brown & Sharpe Mfg. Co., supra. They judge the legislation, not by the ‘just and proper’ rule, but by the date when it came into existence; and they insist that any legislation, if enacted subsequent to the creation of a corporation and the issuance of its preferred stock, may not be a source of authority for corporate action which deprives a holder of his stock or of its preferential rights or of the dividends accrued thereon. An attempt to do so, they say, constitutes an unconstitutional exercise of the reserved power. On this issue, as on most others in this case, the authorities are not in accord.
On the one side, there is a body of law which speaks of the three-fold nature of the stockholder's contract and, while agreeable to an exercise of the reserved power affecting only the contractual relationship between the state and the corporation, rejects as unconstitutional any exercise which affects the relationship between the stockholder and the corporation or between the stockholders inter sese. Wheatley v. A. I. Root Co., 147 Ohio St. 127, 69 N.E.2d 187; Schaad v. Hotel Easton Co., 369 Pa. 486, 87 A.2d 227. Under this *48 view, subsequent legislation purporting to permit a corporate act to cancel accrued preferred dividends would obviously be an improper exercise of the power inasmuch as the essence of a preferred stockholder's contract is its definition of his relationship with the corporation and with the other stockholders vis-a -vis such matters as the distribution of the profits of the enterprise or the division of its capital and surplus account in the event of liquidation.
The other side of the argument considers that the question is primarily one of statutory construction and that so long as the statute authorizes the corporate action, it should make no difference whether its enactment preceded or postdated the birth of the corporation or the issuance of its stock.[FN7] The basis for this viewpoint is that the terms of the preferred stockholder's contractual relationship are not restricted to the specifics inscribed on the stock certificate, but include also the stipulations contained in the charter or articles of association as well as the pertinent provisions of the general corporation law. One of those provisions is, of course, the reserved power; and so long as it is a part of the preferred shareholder's contract, any subsequent legislation enacted pursuant to it, even though it may amend the contract's original terms, will not impair its obligation in the constitutional sense. It is as if the stock certificate were inscribed with the legend ‘All of the terms and conditions hereof may be changed by the legislature acting pursuant to the power it has reserved in G.L.1956, s 7-1-13.’
FN7. This, in substance was the basis for the decision in Consolidated Film Industries, Inc. v. Johnson, supra page 93. The corporation there, as distinguished from the one in Keller v. Wilson & Co., supra, page 93, was created subsequent to the amendment which permitted recapitalization. Nonetheless, the court was ‘* * * unable to discover a difference in principle between the two cases.’ Speaking to this question, it has been said that ‘It is no more unconstitutional to permit the Legislature, under *49 the reserved power, to authorize a corporation to abolish dividends which have accrued in the past, than it is to authorize a corporation to abolish dividends which may accrue in the future. There is a difference in degree, but not one of kind. In both cases there is interference with a contractual relationship between the stockholders and the corporation or between the stockholders inter sese. But this the Legislature is permitted to do, certainly under the reserved power in the Constitution and in the General Corporation Law, to alter or amend the charters of corporations**97 * * *.’ McNulty v. W. & J. Sloane, 184 Misc. 835, 845, 54 N.Y.S.2d 253, 263. See also Bingham v. Savings Investment and Trust Co., 101 N.J.Eq. 413, 138 A. 659, aff'd 102 N.J.Eq. 302, 140 A. 321.
It remains to be ascertained how the diverse views jibe with our own precedents. While we have no direct authority, two early cases discuss in some detail the extent to which a shareholder's rights may be affected by corporate action taken under authority of legislation enacted pursuant to the reserved power. The first is Bailey v. Trustees of Power Street Methodist Episcopal Church, 6 R.I. 491. There a pewholder held title under deeds which expressly subjected his pews to such rates and taxes as his grantor, an unincorporated church society, might impose for its general expenses and repairs. When the church society subsequently incorporated, its charter specified that the assent of the majority of the pewholders was prerequisite to the imposition of a pew tax. Thereafter a charter amendment enacted pursuant to the reserved power restored to the society ‘* * * the untrammelled power to tax the pews according to the tenor of the deeds of the pewholders * * *.’ The validity of a tax assessed pursuant to that amendment was upheld, the court saying that the immunity from taxation conferred by the original charter, rather than being permanent, existed only during the pleasure of the general *50 assembly; and that the assembly in amending the charter ‘* * * certainly impaired the obligation of no contract contained either in the deeds or the charter, and derogated from no right or interest of the pewholders of a fixed or permanent character.’
Bailey, while to a considerable degree apposite, does not directly assist on whether in matters of this kind the controlling law should be that in effect when the corporation is organized and the stock issued. This is so because in Bailey the pews, when acquired, were taxable by the society without necessity of shareholder acquiescence and all that was accomplished by the charter amendment permitting assessment was to restore that status as it had originally existed. The same accommodation, however, will not serve to explain Gardner v. Hope Ins. Co., 9 R.I. 194. There, when the defendant insurance company was chartered and when the plaintiff's stock was issued, the law in existence did not permit fully paid stock to be assessed. By subsequent amendment enacted pursuant to the reserved power, Hope Insurance Co. was empowered to assess stock previously issued notwithstanding that it may have been fully paid, in order ‘* * * to fill up the capital stock to its original amount.’ An assessment made pursuant to that authorization was upheld, the court saying at 199-200
‘The legislature have reserved the power, at any time to alter or repeal the charter, or any of its provisions. The corporators accepted it upon this condition, and agreed that its provisions might be changed, and every purchaser of stock in this company has assented to these terms, and has agreed to hold his shares subject to this liability to change. There is no limit to the power expressed in the act. In terms it is unlimited.’
While we do not, particularly in the light of what has been written since, necessarily subscribe to the reasoning of Gardner in its entirety, it is a precedent. And if in that case subsequent legislation enacted pursuant to the reserved *51 power may with propriety be a source of authority for an insurance company to revoke a stockholder's freedom from assessment on his fully paid stock, then certainly in the instant case such legislation may also with equal propriety be the basis for a corporation to employ the merger device as a means of cancelling preferred stock and the dividends accumulated thereon. In each instance, to be sure, the stockholder's contractual rights have been altered, but in each instance the alterations are permitted by the stockholder's contract into which the law reads the reserved power to amend or repeal. That power is a part of the charter or articles of association of every Rhode Island corporation.**98 Gardner v. Hope Insurance Co., supra.
One other case, although perhaps distinguishable because it involves a public utility, merits mention. It is the case of Narragansett Electric Lighting Co. v. Sabre, 50 R.I. 288, 146 A. 777, 66 A.L.R. 1553, where the special legislative act incorporating the Narragansett Electric Company authorized the Narragansett Electric Lighting Company upon the approval of at least two-thirds of its shareholders to transfer and convey all of its assets to the newly incorporated company. Notwithstanding that the vendor company as originally chartered lacked power to transfer all of its assets, the sale was sustained as against the complaint of a dissenting shareholder that the obligation of his contract had been impaired by the subsequent legislation. See also East Providence Water Co. v. Public Utilities Comm'n, 46 R.I. 458, 128 A. 556.
On the basis of our own precedents we conclude that the merger legislation, notwithstanding its effect on the rights of its stockholders, did not necessarily constitute an improper exercise of the right of amendment reserved merely because it was subsequent.
In addition to arguing that the proposed plan suffers from a constitutional infirmity, plaintiffs also contend that *52 it is unfair and inequitable to them, and that its consummation should, therefore, be enjoined. By that assertion they raise the problem of whether equity should heed the request of a dissenting stockholder and intervene to prevent a merger notwithstanding that it has received the vote[FN8] of the designated proportions of the various classes of stock of the constituent corporations.
FN8. For purposes of this proceeding we have accepted the implied assumption of all of the parties that the proposed merger will receive the required vote and we have not sua sponte suggested that the suit might more properly have awaited that eventuality. In looking to the authorities for assistance on this question, we avoided those involving recapitalization by charter amendment where a dissident's only remedy against allegedly unfair treatment was in equity. In those situations the authorities generally permit equitable intervention to protect against unfair or inequitable treatment. Kamena v. Janssen Dairy Corp., 133 N.J.Eq. 214, 31 A.2d 200, aff'd, 134 N.J.Eq. 359, 35 A.2d 894. They are founded on the concept that otherwise there might be confiscation without recompense. The same rationale, however, is not available in the case of a merger, because there the dissenting stockholders usually can find a measure of protection in the statutory procedures giving them the option to compel the corporation to purchase their shares at an appraised value. This is a significant difference and is ample reason for considering the two situations as raising separate and distinct issues. Anderson v. International Minerals & Chemical Corp., supra.
[6]
This case involves a merger, not a recapitalization by charter amendment, and in this state the legislature, looking to the possibility that there might be those who would not be agreeable to the proposed merger, provided a means whereby a dissatisfied stockholder might demand and the corporation be compelled to pay the fair value of his securities.*53 G.L.1956, ss 7-5-8 through 7-5-16 inclusive. Our inquiry then is to the effect of that remedy upon plaintiff's right to challenge the proposed merger on the ground that it is unfair and inequitable because it dictates what shall be their proportionate interests in the corporate assets. Once again there is no agreement among the authorities. Vorenberg, ‘Exclusiveness of the Dissenting Stockholder's Appraisal Right,’ 77 Harv.L.Rev. 1189. See also Annot. 162 A.L.R. 1237, 1250. Some authorities appear to say that the statutory remedy of appraisal is exclusive. Beloff v. Consolidated Edison Co., 300 N.Y. 11, 87 N.E.2d 561; Hubbard v. Jones & Laughlin Steel Corp., D.C., 42 F.Supp. 432. Others say that it may be disregarded and that equity may intervene if the minority is **99 treated oppressively or unfairly, Barnett v. Philadelphia Market Co., 218 Pa. 649, 67 A. 912; May v. Midwest Refining Co., 1 Cir., 121 F.2d 431, cert. denied 314 U.S. 668, 62 Sup.Ct. 129, 86 L.Ed. 534, or if the merger is tainted with fraud or illegality, Adams v. United States Distributing Corp., 184 Va. 134, 147, 34 S.E.2d 244, 250, 162 A.L.R. 1227; Porges v. Vadsco Sales Corp., 27 Del.Ch. 127, 32 A.2d 148. To these differing views must also be added the divergence of opinion on whether those in control or those dissenting must bear the burden of establishing that the plan meets whatever the required standard may be. Vorenberg, supra; 77 Harv.L.Rev. 1189, 1210-1215.In this case we do not choose as between the varying views, nor is there any need for us to do so. Even were we to accept that view which is most favorable to plaintiffs we still would not be able to find that they have been either unfairly or inequitably treated. The record insofar as it relates to the unfairness issue is at best sparse. In substance it consists of the corporation's balance sheet as of September 1967, together with supporting schedules. That statement uses book, rather than the appraised, values, and neither it nor any other evidentiary matter in any way *54 indicates, except as the same may be reflected in the surplus account, the corporation's earning history or its prospects for profitable operations in the future.
Going to the figures we find a capital and surplus account of.$669,948 of which $453,000 is allocable to the 4,530 issued and outstanding shares of $100 par value preferred stock and the balance of $216,948 to surplus. Obviously, a realization of the book value of the assets in the event of liquidation, forced or otherwise, would not only leave nothing for the common stockholders, but would not even suffice to pay the preferred shareholders the par value of their stock plus the accrued dividends of $645,000.
If we were to follow a rule of absolute priority, any proposal which would give anything to common stockholders without first providing for full payment of stated value plus dividend accruals would be unfair to the preferred shareholders. It could be argued that the proposal in this case violates that rule because an exchange of one share of Community Hotel's preferred stock for five shares of Newport's common stock would give the preferred shareholders securities worth less than the amount of their liquidation preference rights while at the same time the one to one exchange ratio on the common would enrich Community Hotel's common stockholders by allowing them to participate in its surplus.
An inherent fallacy in applying the rule of absolute priority to the circumstances of this case, however, is its assumption that assets would be lequidated and that nothing more than their book value will be realized. But Community Hotel is not in liquidation. Instead it is a going concern which, because of its present capitalization, cannot obtain the modern debt-financing needed to meet threatened competition. Moreover, management, in the call of the meeting at which it was intended to consider and vote on the plan, said that the proposed recapitalization plan *55 was conceived only ‘* * * after careful consideration by your Board of Directors and a review of the relative values of the preferred and common stocks by the independent public accountants of the Corporation. The exchange ratio of five new common shares for each share of the existing preferred stock was determined on the basis of the book and market values of the preferred and the inherent value of the unpaid preferred dividends.’ Those assertions are contained in a document admitted as an exhibit and they have testimonial value.
When the varying considerations-both balance sheet figures and management's assertions-are taken into account, we are unable to conclude, at least at this stage of the proceedings, that the proposed plan is unfair and inequitable, particularly because plaintiffs as dissidents may avail themselves of the opportunity to receive the **100 fair market value of their securities under the appraisal methods prescribed in s 7-5-8 through s 7-5-16 inclusive.
[7]
The plaintiffs argue that due consideration will not be given to their dividend accruals under the appraisal. We do not agree. Jeffrey v. American Screw Co., 98 R.I. 286, 201 A.2d 146, requires that the securities of a dissident invoking the statute must be appraised by a person ‘versed in the intricacies of corporate finance.’ Such a person will find when he looks to Jeffrey for guidance that the evaluation process requires him to consider ‘* * * all relevant value factors including market value, book value, asset value, and other intrinsic factors probative of value.’ Certainly, unpaid dividend arrearages fall within that directive and are a relevant factor to be considered in arriving at the full and fair cash value of the plaintiffs' preferred stock. While we make no decision one way or the other on the exclusiveness of appraisal as a remedy for a dissident, we do decide that its availability is an element or a circumstance which equity should weigh before intervening. When that is done in this case, we find no ground for intervention.For the reasons stated, the judgment appealed from is affirmed.
案情简介
新港交通旅店（下称交通旅店）公司发行了普通股和优先股两种股份。原告取得了约900股该公司的优先股股份。在本案提起时，该公司已发行并流通在外4,335股优先股，大约有24年累计的未宣布的红利总额达645,000美元或每股148.75美元。1964年交通旅店投资设立新港旅店公司（下称新港旅店），新港旅店公司的授权资本是80,000股票面金额为1美元的普通股股份；其中只发行了1股，是向交通旅店发行的，对价为10美元。子公司成立后，两个公司拟订了合并计划。合并计划的主要内容是要求交通旅店并入新港旅店；新港旅店成为合并后存续的公司。尽管新港旅店在此之前没有资产，如果合并成功的话，新港旅店作为唯一的所有权人将取得交通旅店现在所拥有的全部资产和财产的所有权。合并计划要求交通旅店流通在外的股份按以下条件转换为新港旅店的资本股份：拟合并公司的每一股优先股及其累计的红利将交换转换为5股存续公司票面金额为1美元的普通股；拟合并公司的每一股无票面金额的普通股将交换转换为1股存续公司票面金额为1美元的普通股。原告认为合并计划取销了他的优先股份优先权，取销优先股股东优先权需要全体优先股股东的同意，而公司合并只需要各类股东三分之二以上股份的同意，合并计划是规避法律的行为。因此提起本案诉讼，请求法院宣告合并合同无效。 案件审理
案件首先在州高级法院提起诉讼，请求法院下达禁令，禁止两个公司合并，但高级法院驳回了原告的起诉，没有下达禁止合并的禁令。因此，原告不服，上诉至罗德岛最高法院。 法官Joslin, Justice发表了法庭意见：
这件民事案件首先起诉到高级法院请求法院禁止被告之一新港交通旅店公司（The Community Hotel Corporation of Newport, Rhode Island）并入新港旅店公司（Newport Hotel Corp.）的合并提案。两个公司都是依本州的普通公司法组织成立的，这里将把他们简称为“交通旅店”和“新港旅店”。当事人没有提供口头证词，根据当事人的举证并在开庭之前取得当事人同意，巡回法官在没有陪审团参加的情况下判决了案件。案件之所以呈上本法庭是由于原告对法官不下达禁令并驳回起诉的判决提起了上诉。
交通旅店是于1924年10月21日以建立、维护、经营、管理和租赁旅店为目的组织成立的；它于1927年以新港维京旅店的名称开始营业。它的授权资本由6,000股票面为100美元的优先的累计的优先股(原文为prior preference cumulative preferred stock)， 6,000无票面金额的普通股股份组成，其中已发行并流通在外2,106股普通股股份。原告和个人被告是优先股股份的持有人；不晚于1930年，原告取得了约900股优先股股份。在本案提起时，已发行并流通在外4,335股优先股，大约有24年累计的未宣布的红利总额达645,000美元或每股148.75美元。
新港旅店是现在应交通旅店董事的请求为了本案诉讼的所涉及的合并而成立的，设立的唯一目的是完成合并。它的授权资本是80,000股票面金额为1美元的普通股股份；其中只发行了1股，是向交通旅店发行的，对价为10美元。
合并计划的主要内容是要求交通旅店并入新港旅店；新港旅店成为合并后存续的公司。尽管新港旅店在此之前没有资产，如果合并成功的话，新港旅店作为唯一的所有权人将取得交通旅店现在所拥有的全部资产和财产的所有权。合并计划要求交通旅店流通在外的股份按以下条件转换为新港旅店的资本股份：拟合并公司的每一股优先股及其累计的红利将交换转换为5股存续公司票面金额为1美元的普通股；拟合并公司的每一股无票面金额的普通股将交换转换为1股存续公司票面金额为1美元的普通股。
依据法律G.L.1956,§7-5-3的要求，合并计划只能在收到各公司每一类股东至少三分之二股东的赞成票才能生效。为了得到法定的同意票数，向交通旅店的普通股股东、优先股股东都发送了将要召开特别股东大会考虑合并计划并对其进行投票的通知。在拟订的股东会议召开日期之前，本案诉讼开始，会议将延期举行。截止到目前记录显示，会议还没有召开。
原告声称，合并的主要、唯一的目的，确实是真的，要在不取得全体优先股股东同意的情况下，除去其优先股的优先权。假定原告的声称是事实的话，我们需要考虑的基本问题就是母公司并入专门为此而成立的全资子公司，以达到除去母公司优先股股东和累计红利的重组资本的目的，这样的合并是否是公司法允许的两个以上公司合并为一个公司的意图。
确实，依据现行的普通公司法通过修改公司章程实现上述的重组资本的目的，要求优先股股东全体一致的同意；而依据公司法有关合并的规定，只需要三分之二的股东同意。应当承认，依本案的案情，不可能得到全体优先股股东一致的同意。所以原告主张，允许利用相对不太严格的合并规定去间接完成依普通公司法其他规定的十分严格的程序不可能完成的行为，等于支持鼓励欺骗或滥用法律。
然而，现在的问题不是通过合并重组资本是否构成阴谋诡计规避法律，而是一项合并交易的唯一目的是为了在不依法律的规定取得全体优先股股东同意的情况下，取销优先股的优先权。解决本问题的法律是本州普通公司法的§7-5-2。这部分法律条款的语言是清楚明确的，与本案的事实完全对应。该法授权任何两个或两个以上的依普通公司法组织设立的商事公司合并为一个公司；该部分法律规定合并协议应当描述“***合并或兼并的条件与条款，各合并组成公司的股东转换为合并后的公司或存续公司的股份或其他证券的方式与方法，以及其他必要的细节。”但该法律条款没有以合并的目的是否符合某种标准作为允许合并或不允许合并的含义。确实，法律的语言指向了相反的含义，精心措辞的法律语言对合并是否进一步增加合并各方的利益并毫不关联，或者合并的唯一目的就是改变现存公司的资本结构完全没有关切。
更进一步看，公司依公司法有关合并的规定行为的后果，可能依普通公司法的另一部分是不可能的或被禁止的，这些都无关紧要，公司法早已确认，普通公司法的各个部分拥有独立的含义，公司依该法的一部分进行行为并不要求它依公司法的另一部分规定也是有效的。
[1]
因此我们认为，在我们的成文的公司法范围内不禁止母公司与子公司合并，即使在一定的条件下，合并被用于避免取得全体优先股股东的同意，而依公司法的其他部分取销优先股股东的优先权是需要全体股东的同意的。
[2]
一个更基本的问题集中于本案特定的事实，即累计优先股的累计红利和其他优先权是否可以通过公司法上的合并被取销。这个问题还没有在本法院出现过，但其他地方却有大量的有关这一问题的法律。当然没有必要讨论所有法律规定。为阐明这一问题，我们只引用特拉华州法院就特拉华州公司所涉及本问题的判决就足够了。那个州作为众多公司设立的州是非常重要的，所以该州法院就本案所涉及的问题的判决不仅为当事人引用并依赖，而且被视为本领域的领先判决。
最早关于本问题的判例是Keller 诉 Wilson & Co.
[3]。 Wilson & Co.成立于1925年并于1925年发行了它的股份，那时法律实际的效果是保护优先股股东不因公司章程修改而损害其对累计红利的权利。1927年修改了法律，允许损害优先股股东对累积红利的权利。随后Wilson & Co.的股东以多数票投票，取销了优先股股东的累计红利。特拉华州法院判决公司的这一行为无效的理由是，公司累计优先股股东对累计的红利的权利是固定的合同权利，这种财产权的性质是债权，它是属于债权人的；没有所有股东的同意，不能以后来法律授权给公司的权利，通过公司行为损害它。
一年以后法院判决了Consolidated Film Industries, Inc. 诉 Johnson一案
[4] ，此案与上面所谈的案件事实相同。唯一的区别是Consolidated Film Industries, Inc.直至1927年公司法修改以后才成立，而在较早的案件中，公司行为依据的法律，是在公司成立和发行股份之后修改的。尽管在Keller案件中，法官推理说投资者有权依赖优先股发行时所存在的法律， Consolidated Film Industries, Inc. 诉 Johnson一案中的法官说，他们无法发现这两个案件有什么本质上的不同。法院在拒绝认可对股份再分类的推理时说，股东对于未付红利的固定合同权利具有崇高的尊严，即使是股份发行以前颁布的公司法授权，也不能使尚未向优先股股东支付的红利减少或被取销。
两年以后，法院判决了Federal United Corp. 诉 Havender一案。这个案件与前两个案件完全相同。持有异议的股东声称，也是可以预期的，公司拟定的行为尽管称为“合并”，在效果上就是类似Keller案的资本重组，他们有权得到类似Keller案的判决。虽然股东有这样的辩论，法院没有将优先股未付的红利认定为“属于债权的性质，属于债权人”。法院也没有拒绝使用Keller案的术语，使人产生困惑。相反它谈了公司依据成文公司法所拥有的合并的权利，它认为在Federal United Corp.成立时已存在的成文公司法被写进了该公司的章程里，所以公司的优先股股东已经被建议、提示和通知，即根据现有的法律，他们对累计红利的权利可能通过公司的行为被取销。
面对公司通过公司行为调整优先股红利的问题，依Erie R.R. 诉 Tompkin一案确立的原则，Hottenstein诉 York Ice Machinery Corp.一案中的法官被要求适用特拉华州法，作为联邦法院的法官，他们发现Keller案、Johnson案、Havender案的判决是相互矛盾的，可以理解他们发出了这样的评论， “公平地说特拉华州最高法院对Keller案的判决使公司界吃惊，准确地说特拉华州最高法院对Havender案的判决使公司界震惊，通过对Keller案推理的剪裁，Havender案的判决实际上是对Keller案和Johnson案判决所确立的原则进行了批判。因为Keller案判决被击破，Hottenstein案判决就可以继续地顺路说，根据特拉华州法一个母公司可以为了取销优先股和优先股股东未被支付的累计红利，与其拥有全部资本的无经营业务的子公司合并，将优先股股东的股份和累计红利换为存续公司的股份。
从Keller案到Havender案只经过了四年的时间，但已足够特拉华州放弃其“属于债权人的权利”的标准来确认公司取销优先股股东对累计红利权利的权力，并且采纳了替代的以司法调查的标准确定对优先股合同的干预是否为立法授权。我们认为Havender案的解决方法是稳妥的，也是有法律依据的。
除了可能主张这个特别的合并是规避法律的诡计以外，原告并没有声称我们有关合并的成文法因为合并影响优先股累计的、未宣布的红利这样一个原因而被禁止。相反，他们主张宣布合并无效的依据是有关法律的颁布时间；他们还指出Havender案的Federal United Corp.是在允许合并的法律颁布之后成立并在此之后发行的股份。而在本案，公司成立和股份的发行都是在有关法律颁布之前进行的。这两个案件的不同情况，带来了这样一个问题，即根据联邦的法律州在随后的影响优先股优先权的有关公司立法权有那些限制。特别是，它提出了州随后的公司法立法是否与联邦和州的宪法相冲突，联邦和州的宪法禁止制定法律影响合同义务，因为州随后的公司立法允许以少于公司成立和股份发行时的股东投票取销优先股的累计红利。
唯一提到宪法禁止制定法律影响合同义务的案件是Trustees of Dartmouth College v. Woodward,
[5]该案判决一个被州许可的私人公司的公司章程是受到宪法保护的合同，不能被随后颁布的法律废除、修改和改变。在公司法领域，同样重要的是法官Story先生表示同意的意见，他提出对公司成立的有关法律适用损害合同义务的条款可能是无效的，如果州的立法，与公司章程制定时的规定相一致，作为公司章程的一部分保留了修改和废除的权利。他说有了这样的保留，随后的废除和修改就是符合公司章程的规定的，也就不违反宪法，不损害合同的义务了。
我们州的立法很快注意到了Story先生的建议。在19世纪的早期，公司还习惯性地由州特别立法设立时，章程的修改、废除和改变直接写入了公司章程中。后来，当实践发生变化，公司不再由法律特别授权成立，而是依据一般公司法律设立时，公司章程的修改、改变和废除的权力被保留在一般公司法的适用中，早在1844年公司法的主要内容就与今天的公司法一致了。“***依本法设立的每个公司的章程都可以依议会的意志被修改或废除。”Section 7-1-3.
保留州立法权的语言并不是循环语言，然而州所保留的立法权有多大范围却一直是难以解决的问题。意识到这一问题，又不能解决；美国最高法院经常引用的段落是：
各州依保留权力所享有的立法权是广泛的，但不是没有限制的。公司章程是可以被废除和修改的，这个权利范围没有必要在这里说明；各州之间的关系，公司和股东之间的关系可以被改变，但是属于债权人的权利和涉及第三人的合同义务不能被损害或摧毁。***
[6]
一方面，很多法律谈到股东合同的三重性，在同意州保留的立法权只能影响州和公司的关系的同时，不同意州立法权的行使可以影响股东与公司的关系或股东之间的关系，认为这样的权利是违反宪法的。根据这一观点，在公司成立以后的立法允许公司采取行动取销优先股股东的累计红利，显然是不适当的；因为优先股合同是界定优先股股东与公司和其他股东之间关系的合同，如说明公司的利润如何分配或公司解散时资本与盈余如何分配。
另一方面的辩论则考虑到这个问题主要涉及成文法的解释，认为只要公司法授权公司进行行为，无论是在公司成立或股份发行之后颁布的还是在公司成立或股份发行之前颁布的，都具有同样的效力。这一观点的基础是确定优先股股东与公司和其他股东之间关系的合同条款并不仅仅包括股份权利证书的描述，也包括公司章程的规定和公司法的有关规定。
案例评析
依罗得岛的公司法取销优先股股东的优先权，需要取得全体优先股股东的同意，而公司合并计划的通过只需要取得每一类股份三分之二的同意。交通旅店为了得到其他融资，希望取销优先股股东的优先权，但这一目的单纯交给优先股股东的投票是不可能得到百分之百优先股股东的同意的。所以公司成立了子公司，以母子公司合并的方式进行资本重组，不再给予优先股股东优先权，而是给予他们置换子公司普通股股份的权利。这一合并交易达到了取销优先股股东权利的目的，却不需要百分之百优先股股东的同意，三分之二的优先股同意即可通过合并交易。法官现在需要判决合并交易目的是取销优先股股东的优先权，规避全体优先股股东同意的法定要求是否合法。法官随后通过分析成文的公司法作为优先股股东与公司和其他股东之间合同的一部分，无论是在股份发行之前制定的，还是在股份发行之后指定的对股东，包括优先股股东具有约束力。从本案我们可以看出，优先股股东处于一个极易受损害的地位，甚至公司可以利用一部分公司法的规定，规避优先股股东拥有的投票权，取笑优先股的优先权和累积红利。 |
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