Opposition Brief — Voeller v. Neilston Warehouse Co.

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IN THE /

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OCTOBER TERM, 1939.

vo. ul 97

OLGA KE. VOELLER ET AL;

vs.

‘THE NEILSTON WAREHOUSE COMPANY ET

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PETITION FOR WRIT OF CERTIORARI,

A FRANCIS J. WRIGHT

17 South High Street, Columbus, Ohio,

CHARLES rm’ SCHWENKER,

_ EARL F. MORRIS,

Of Counsel.

BRIEF FOR RESPONDENTS IN OPPOSITION

‘Petitioners,

AL.,

Respondents.

Attorney for Respondents,

RODENFELS .LAW PRINTING COMPANY, Columbus, .Ohio

Supreme Court of the United States.

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INDEX.

- Respondents’ Answers to Petitioners Reasons for Al-

: lowance of Writ...... PBS pate are pee eens RE Nee = 1

_ Answer to Petitioners’ Brief......... Oh SRG a ee eh

_ Authorities Cited.

Baltimore & Ohio Rd. Co. v. Baillie, 112 O. S. 567, 148

We, TEI no 5 Biss cio ws Ciba ges Canes 2

Baltimore & Ohio Rd. Co. v. U. S., 298 U. S. 349, 80 L.

TD, Pie CE apes des oo osce pee tes car vases 3

Bailey v.. Alabama, 219 U. S. 219, 55 L. Ed. 191 (1911). 3

Coe v. Armour Fertilizer Works, 237 U.S. 4, soL.

Be, Met AIOED) . Wisi doo evn seg s Bs dingo vistas 3

* Dodge v. Woolsey, 18 How. 331, 15 L. Ed. 401.(1856).. re

‘. Haas v. State, 108 O. S. 1,132 N. E. 158 (1921)........ 2

* Heiner v. Donnan, 285 U. S, 312, 76 L. Ed. 772 (1932).3, 7 ¢

Manley v. Georgia, 270 U. 8.1,73 L. Ed. 575 (1929)... 3 - :

Minnesota v. Barber, 136 U.S. '313, 34 L. Ed. 455 (1890) 2 a

Neblett v. Carpenter, 305 U. 8. 297, 83. L. Ed. 182 i

ROUEE, so raasedvegtauceskueh aes Gerkee souereer 4, 5 ae

Orient Insurance Co. v. ”, Deak. 172 U. 8.°557, 43 L. Ed. es .

| FE CERO Fea Sos snc vic cones ses cnbhevanguavadss 6° ei

Powell v. Alabama, 287 U. 8. 45, 77 L. Ed. 158 (1932) .. 3

* Railroad Com. of Cal. v. Pacific G. & E. Co., 302 U. S.

SERS

SS, OT Md. B19 (00) 3 |

Schlesinger v. Wisconsin, 270 U. 8. 230, 70 L. Ed. 557 i.

GRD Fos N ick bres Losin VeaMaphvcdyaieeein a \f ct

United States v. Carver, 260 U. S. 482; 67.L, Ed. 361 - Oe

PR eis RS Sook a. i

~ Western & Atlantic Railroad v. Henderson, 270. v. ee ‘|

GOO, 73 Ts Tid. GB4 (1999) 5. eos be cds; ty. is

_ Wrede v. Richardson, 77 0. S. 182, 82 N. E. 1072 (aso7) 2 1

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IN THE

Seprem Court of the United States.

OCTOBER TERM, 1939.

No. 1035. 7

OLGA E. VOELLER ET AL,

; sical :

: Vs.

THE NEILSTON WAREHOUSE COMPANY ET AL,

Respondents.

— =

Pos ‘BRIEF FOR ‘RESPONDENTS IN OPPOSITION TO .

PETITION FOR WRIT OF CERTIORARL.-

RESPONDENTS’ ANSWER TO PETITIONERS’

_ REASONS FOR ALLOWANCE OF WRIT.

‘The Supreme Court of Ohio, in a six-to-one decision,

- upheld the constitutional guarantee of dye precess under

_. the Fourteenth Amendment. In so doing it followed, well

-recognized principles of law. These principles have been

_. repeatedly stated by this Court with consistent uniformity.

t

Indeed, we he of no authority which i is out of f harmony

with the decision of the majority.

_ It is significant that there i is not a single authority men-

tioned in the dissenting opinion on the constitutional point.

_ The Supreme Court of Ohio held (we quote the syllabus) :

. _ 1. The constitutionality of a law may be deter-:

mined by its operative effect. :

2. A statute, the operative effect of which- is to de-

prive a-person oi? his propérty without notice and

without opportunity to be heard before a eompetent

tribunal, is violative of: Section 1 of the 14th Amend- .

ment to the federal Qonstitution. |

aie | 3: That part of Section 8623- 72, General Code; cre-

: ... ating a conclusive presumption in favor of minority

stockholders of a corporation who have demanded the ’

fair cash value of their shares constitutes a denial of —

due process to the majority in failing to afford them |

an opportunity to repel it, and has an. unconstitutional

operation. ”’

.% | ‘This i is the law decided. by ‘the ny Court of. Ohio

in this case. In Ohio the propositions of law decided in

any given case are those’ stated i in the syllabus of the case,

Baltimore & Ohio Rd, Co. v. Baillie, 112 O. S. 567, 148 N.

KE. 233 (1925). Or, as differently expressed, the points de-

cided are found in the syllabus. Wrede v. Richardson, 77

O. S., 182, 82 N. E. 1072 (1907). : Matter outside the sylla- °

bus is not regarded as decision. Haas v. State, 103 O. 8. 1,

- 132 N. E. 158 (1921).

That the eonstitutionality of a law may be determined

by its operative effect is not open to dispute. Indeed it is

conceded by opposing counsel at page 16 of the petition.

3 This Court. has many times statéd this principle.

_ Minnesota v. Barber, 136 U. 8S. 313, 34 L. Ba. 455

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- Likewise, the proposition stated in the second branch. of

the syllabus is well established and is conceded by oppos-

ing counsel at page 16 of the petition. It has ‘been recog-:

nized and approved over and over again by this Court.

Railroad Com. of Cal. v. Pacific G. & E. Co., 302

U. S. 388, 82 L. Ed. 319 (1938). aes .

Baltimore & Ohio R. Co! v. U. S., 298 U.'B. 349,80 F

L. Ed.-1209 (1936). :

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158

' . (1932). :

Coe v. Armour Fertilizer Works, 237 as . 413, 59

L. Ed. 1027. (1915).

So also as to the third branch of the syllabus, holding the

statutory conclusive presumption to, be unconstitutional.

Bailey v. Alabama, 219 U. 8. 219, 55 L. Ed. 191

(1911). 7

Ft939). Donnan, 285 U. S. 312, 76 L. Ed. 772 |

9

Schlesinger vi Wisconsin, 270 U. S. 230, 70 L. Ed.

557 (1926).

“Manley v. Georgia, 229 U. 8.1, 73 L. Ed. 575 (1929). : a

Western & Atlantic Railroad v. H — 279U.S. -: ae!

639, 73 L, Hd. 884 (1929).

Other viikadlilias of lew discussed, but not decided, in the - a

opinion relate only to local law. Opposing counsel concede og

this in paragraph (11) on page 22 of the ‘petition. This

is so principally because the statutory provision ‘in question

is found in no other state excepting Rhode Island, which | ie

copied this provision from the Ohio Act in 1932. It has >

never been approved by the National Conference of Com- 5S q

missioners on Uniform Laws nor has it been included as a — se te Li

_ part of the Uniform Corporation Act. Moreover, the :

factual situation here is singularly unique because minority

_ shareholders ‘can, wnde. §8623-72, and almost : invariably

do, bring actions within the time limit prescribed by the -

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Section (six months) ‘o have the fair cash value of their

shares determined in a _perfectly constitutional manner..

The dissenters here, having demanded exorbitant amounts

~~ (four times as much as their pro rata distributive shares,

i. e., $100 per share.as against $25 per share) sought’ by

the aid of the conglusive presumption to preclude inquiry

into the value. of their shares ‘and thereby te obtain ap-

proximately. $100 per share, which would have resulted in

; other shareholders receiving only about $13 per share.

It is clear, therefore, that there are no special and im-:

portant reasons for granting. a writ'in this case. Nor can

it be said that the Supreme Court of Ohio (a) has decided - .

a federal question of substance not heretofore decided by

~ this Court, or (b) has decided: a federal question of sub-

stance in a. way probably not in accord with the applicable

_ decisions of this Court. .

It should be added that other principles of law discussed

in the majority ‘opinion,. involving non- -federa] ‘questions,

are amply supported by authority. "

The statements at pages 17 and 18 of the petition as to

the ‘fredress’’ of the minority shareholders are without

merit because, as stated above, such minority shareholders

have the right, under §8623-72 G. C., to file actions, when

their demands are refused, to have the fair cash value of

their shares determined in the manner provided by the

statute. The decision below has not altered or impaired :

this right. ’

; In stating that §8623-72 G. C. is separate ‘and distinct,

: from’ $8623-65 G. C., the Supreme Court of Ohio was

merely construing the statutes—a matter with which this 4

Court isnot concerned. Neblett v. Carpenter, 305. U. S.

. 297, 83 L. Ed. 182 (1938).. Such construction is in no way’

_ related to the constitutional question here involved. i

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Of course, neither American Telephone & Telegraph:

Company, United States Steel Corporation, .nor. General

Motors Corporation, nor any other corporation not or-

ganized under the laws tf Ohio, are remotely affected by

_ this decision for the simple reason that the states ‘of their

incorporation. “have no similar statutory conclusive pre-

sumptions. As to, Proctor & Gamble Company, am Ohio

corporation, the rights ‘of dissertting shareholders, as

pointed out above, are still ‘adequately protected under

§8623-72 G. C. and the statement that they are ‘‘without

a

remedy’’ or are denied ‘‘redress’’ is clearly errqneous. .

Such shareholders need only make their demands and, if ,

such demands are refused and negotiation feils, they may

file actions to have the fair cash Value of their. shares”

determined and paid. . ;

From:what has been said it ane be apparent that the.

‘application of ‘the: constitutional principles here involved

to the facts of this case cannot be a precedent. Co Str

states because, excepting Rhode Island, they have no

.similar statutory provision. ‘

It is, of course, well settled that a denial of a petition for

certiorari by this Court does not, as suggested by opposing

counsel at page 20 of the petition, import an expression of

opinion upon the merits of a case.

Uz 8. v. Carvity, 260 U. S. 482, 67 L. Ed. 361 (1928),

ANSWER TO PETITIONERS BRIEF.

The petitioners’ brief is devoted almost exelusively to a

discussion of the construction-of thé Ohio statutes and of cs

general principles: of local law with which this Court is not

here concerned. Neblett.v.- ee, supra.

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Certainly’ the discussion relative to possible’ conflicts

+etween decisions .of inferior courts of Ohio is of no mo-—

ment here. If it were, it ‘could be — shown that no .§

such conflict exists.

There is nothing in Dedes v, Woelevi, 18 How. 331, 15

' ~ L, Ed. 401 (1856), which has. any bearing’ on the constitu- —

tional point.. Moreover, the principle for which this case is

cited ‘relates to local or. non-federal law. But most im-

~~ portant, the court below, i in the instant case, discussed this

point i in connection with the construction of §8623- 72 G.C.,,

Be Transcript of Record, p. 109.

Nowhere is it pointed out in the petitioners’ brief that,

the Supreme Conrt of Ohio has decided a federal question

of substance not heretofore decided by this Court or not

in accord with the applicable decisions of this Court. The

nearest approaclr i is-on page 37 of petitionérs’ brief under

the heading “ESTOPPEL BY ACCEPTING ‘BENE.

FITS.’ The subject of estoppel, however, ‘is: not a federal...

. question’ and moreover the whole argument of estoppel is °

based upon the contention that §8623- 65 and §8623-72 G. C.

are one and the same and should be so “construed. The

Supreme Court of Ohio, however, has coistrued these Ohio”

statutes differently and accordingly the whole argument he

of. _ estoppel fails. , Hence, it cannot be said that the de:

_ cisions of -this Court, cited at the bottom of page 37 of .

petitioners’ brief, are not: in accord ‘with the decision of =

the Suprentie Court of Ohio. -.. °

- The cave of Orient ‘Insurance Co. v. Daggs,. 1172'U. S. 557,

i BL. Ed. 552 ( 1899), 4 ds not applicable.” In the — it j is

expressly stated:

‘‘The cases cited i plaintiff in error, | which hold

_ that the legislature may give the effect of prima facie

proof ‘to certain acts, but not conclusive eee, ead not

- apply.” —

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That case merely involved the right of the legislature tet

restrict contractual provisions in fife insurance policies.

_ Manley v. Georgia, supra, referred to at page 46 of the be

-.petitioners’ brief, js clearly in accord with the decision of

‘the. Supreme Court of Ohio. Likewise, the cases of

Western & Atlantic .Railway: v. Henderson, supra, Schles-

inger v. Wisconsin, supra, and H einer ,v. Donnan, supra,

are not only in ‘accord with, ‘but fully ‘suppott, the decision

of the Supreme Court of Ohio. Opposifig counsel are in. |

error in stating, at page 47, that the Supreme Court of |

Ohio: ‘‘indulged. in no discussion whatever as to whether or : .

not Section 8623-72 affords a fair opportunity to repel the

* presumption.” For such’ discussion see Transcript of |

Record, pp. 110 et.seq. sei

It is tespectfully submitted that the petition ‘should ‘be

denied.

~ Respectfully subsaitied,

j FRANCIS J. WRIGHT, _

ay South High Street, Columbus, Ohio, ~~ _

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