Opinion
No. 3701.
Decided February 3, 1948.
Where the sale and transfer of one railroad corporation to another is made subject to the right of dissenting stockholders they are entitled to maintain as against, the latter corporation a petition to the Superior Court under the provisions of R.L., c. 296, s. 25, to an appraisal of the value of the stock they held in the former corporation. A judicial interpretation of a procedural statute will not be overruled where the statute under which relief was granted was subsequently reenacted without change and the Legislature by subsequent legislation evidenced no purpose to restrict the remedy afforded in such case.
PETITION, under R.L., c. 296, s. 25, for valuation of stock by the plaintiff who was a dissenting stockholder of the defendant, Concord and Portsmouth Railroad, which was dissolved by Laws 1945, c. 247. The latter statute took effect upon its passage and contained no provision for suits thereafter instituted. The present petition was brought about two years thereafter.
The property and franchises of the Concord and Portsmouth Railroad were sold to the Boston Maine Railroad in December, 1944, at a price equivalent to $50 per share on the outstanding stock with the approval of the Public Service Commission. R.L., c. 289, s. 27. See also, 240 I.C.C. 748. Payments on that basis were made to the dissenting stockholders, including plaintiff and others, the following month.
The Boston and Maine filed a demurrer, the Concord and Portsmouth filed a motion to dismiss and the plaintiff filed a motion under R.L., c. 296, s. 25. The questions of law raised by these pleadings were transferred without a ruling by Leahy, J.
Charles F. Hartnett (by brief and orally), for the plaintiff.
McLane, Davis, Carleton Graf (Mr. Carleton orally), for the defendants.
As stated by the defendants, "the fundamental issue is whether or not the petitioners, as former minority stockholders in the Concord and Portsmouth Railroad, are entitled on their petition to an appraisal of their stock under R.L., c. 296, s. 25, et seq." While the statute provides that "the corporation . . . may apply by petition," it has been construed as also allowing the dissenting stockholder same privilege. "A stockholder in a railroad thus dissenting by petition to the Superior Court seek a determination of the of his `stock, interest or property right taken' P.L., c. 246, s. 25." Perkins v. Company, 90 N.H. 534, 536. This construction of Public Laws is controlling today since the statute was reenacted without change in the Revised Laws. Gauthier v. Gosselin, 94 N.H. 496.
The argument that the Perkins case, supra, should be overruled has been considered but is rejected. Not only did the Legislature reenact the statute without change but it has evidenced no purpose to restrict the remedies of railroad stockholders in subsequent legislation. R.L., c. 289, s. 27 as amended by Laws 1943, c. 82. With statutory exceptions not material here, it has been long established in this state that one's rights will be protected by some remedy. Edes v. Boardman, 58 N.H. 580, 590. Procedure and form will yield to substance and emphasis will be placed on the simple merits of the controversy rather than the form of the pleadings in which they may be presented. Walker v. Walker, 63 N.H. 321; Lewellyn v. Follansbee, 94 N.H. 111, 114; Eastman v. Waisman, 94 N.H. 253, 254. Whatever plaintiff's rights may be, she is entitled to her day in court and R.L., c. 296, ss. 25, 26 as construed in the Perkins case provides the necessary remedy. Aside from the doctrine of stare decisis, we are not moved to reexamine the merits of a decision which allows a procedural remedy when the Legislature has not directly or indirectly attempted to change it and has in some degree reaffirmed it by reenactment. The demurrer of the defendant, Boston and Maine Railroad, is overruled.
The motion to dismiss by the Concord and Portsmouth Railroad should be granted. Plaintiff's rights will not be affected thereby since it appears that the sale and transfer to the Boston and Maine Railroad is made subject to the rights of dissenting stockholders of the Concord and Portsmouth Railroad. If such stockholders should obtain greater appraisals of their shares, "the Boston and Maine will pay such appraised value though it exceeds $50 per share" 26 N.H. P.S.C. 234, 236 (1944). Accordingly it is unnecessary to decide whether this jurisdiction is committed to the common law rule that corporate dissolution is corporate death or the trust fund doctrine that the assets of the dissolved corporation constitute a trust fund for the benefit of creditors and stockholders. See, District v. Greenfield, 64 N.H. 84; Conn v. Company, 79 N.H. 450; Blake v. Railroad, 39 N.H. 435, 47 A.L.R. 1288; 97 A.L.R. 477.
Plaintiff's motion under R.L., c. 296, s. 25, or its equivalent may be allowed by the Superior Court.
Case discharged.
DUNCAN, J. did not sit: the others concurred.