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Opinion of the Court.

244 U.S.

ably think so, and legalize his presence on the car without payment of fare."

Freedom to come and go upon the street cars without the obstacle or discouragement incident to payment of fares may well have been deemed by the legislature essential to efficient and pervasive performance of the police duty. Increased protection may thereby enure to both the company and the general public without imposing upon the former an appreciable burden. If any evidence of the reasonableness of the provision were needed, it could be found in the fact that such officers had been voluntarily carried free by the company and its predecessors for at least eighteen years prior to July 4, 1910, when the practice was prohibited by the Public Utilities Act (P. L. 1910, p. 58). In the following year such free transportation was expressly permitted (P. L. 1911, p. 29), and it was made mandatory by the act here in question. We cannot say that the requirement that city detectives not in uniform be carried free on street cars when in the discharge of their duties is an arbitrary or unreasonable exercise of the police power.

Furthermore the charter of the Railway Company was subject to alteration in the discretion of the legislature (Constitution of New Jersey, Art. IV., 87, Par. 11. P. L. 1846, p. 17.) The obligation to carry free city detectives engaged in the discharge of their duties is a burden far lighter than others imposed upon street-using corporations which have been sustained by this court as a valid exercise of the reserved power.1

The statute is broad in scope, extending also to all “uniformed public officers”; but the court below expressly confined its decision to the case presented, sustaining the

1 Stanislaus County v. San Joaquin C. & 1. Co., 192 U. S. 201; San Antonio Traction Co. v. Altgelt, 200 U. S. 304; Fair Haven & Westville R. R. Co. v. New Haven, 203 U. S. 379.

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244 U. S.

Counsel for Plaintiffs in Error.

law "in so far as it applies to police officers"; and our decision is likewise so limited. The judgments are

Affirmed.

MR. JUSTICE MCKENNA and MR. JUSTICE PITNEY dissent.

UNITED COPPER SECURITIES COMPANY ET AL. v. AMALGAMATED COPPER COMPANY ET AL.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE

SECOND CIRCUIT.

No. 208. Argued April 24, 1917.-Decided May 21, 1917.

The established principles limiting the right of a stockholder to sue on

behalf of the corporation when it refuses to do so, restated and held applicable to an action for damages based on alleged injury to the

corporation through violations of the Sherman Act. The rule which confines the individual stockholder to the equitable

forum when seeking to enforce a right of the corporation applies when the cause of action arises under the Sherman Act, as in other

cases. Fleitmann v. Welsbach Co., 240 U. S. 27, distinguished. Whether or not in an action by stockholders to enforce an alleged right

of their corporation this court has power to substitute as plaintiffs persons appointed receivers of the corporation while the writ of error is pending, Held that in the circumstances stated in the opinion such

a motion was without merit in this case. 223 Fed. Rep. 421, affirmed.

THE case is stated in the opinion.

Mr. Ferdinand E. M. Bullowa, with whom Mr. Ralph James M. Bullowa, Mr. Emilie M. Bullowa and Mr. Robert H. McCarter were on the briefs, for plaintiffs in error.

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Mr. John A. Garver for defendants in error Amalgamated Copper Company et al.

Mr. Louis Marshall for defendant in error Adolph Lewisohn.

MR. JUSTICE BRANDEIS delivered the opinion of the court.

This is an action at law. The complaint alleges that plaintiffs are the holders of more than 200 of the 500,000 shares of the outstanding stock of the defendant United Copper Company, a New Jersey corporation; that the defendants other than that company have by conduct violating the Sherman Law (Act of July 2, 1890, c. 647, 26 Stat. 209) injured it to the extent of more than $5,000,000, and that:

IV. In or about the month of January, 1912, and before the commencement of this action the plaintiffs, United Copper Securities Company and Arthur P. Heinze, each made a demand upon the defendant, United Copper Company, that this or a like action be instituted by said corporation defendant, and said corporation defendant, and its Board of Directors, have refused to comply with said demand, and have failed and refused to commence or cause to be commenced any action whatever in compliance therewith.

“V. This action is commenced and prosecuted by the

The bill is framed on the theory that the injury to the United Copper Company was suffered directly, as a competitor of the other defendants, and the case will be discussed on that supposition. It is proper to observe, however, that the allegations of the bill are ambiguous in this respect, and that the United Copper Company appears to have been a mere holding company, which suffered injury only indirectly as controlling stockholder in various mining companies alleged to have been damaged by the conspiracy and which were not made parties to this suit.

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plaintiff United Copper Securities Company, and by the plaintiff, Arthur P. Heinze, each individually and for himself and also on his own behalf and on behalf of all the other stockholders of said United Copper Company."

The complaint concludes:

"Wherefore, the plaintiffs demand judgment in their favor and in favor of any stockholders of the United Copper Company who may join with them in the prosecution of this action in the sum of three-fold damages under Section 7 of the Act of Congress aforesaid, and that each of the defendants shall be compelled to pay the damages sustained by the United Copper Company, as hereinbefore alleged.”

The District Court sustained a demurrer and dismissed the complaint. Its judgment was affirmed by the Circuit Court of Appeals, 223 Fed. Rep. 421; and the case comes here on writ of error. A motion for substitution of plaintiffs, hereafter referred to, was made in this court and argued with the merits.

There is no statement in the complaint that the alleged wrongful acts have caused injury to the plaintiffs as individual shareholders; and no recovery is sought for damages to them or to their property. The case involves, therefore, this single question: Whether a stockholder in a corporation which is alleged to have a cause of action in damages against others for conduct in violation of the Sherman Act, may sue at law to recover such damages in the right of the.corporation, if, after request, it refuses to institute the suit itself? Insuperable obstacles to the maintenance of the action are presented both by the substantive law and by the law of procedure.

Whether or not a corporation shall seek to enforce in the courts a cause of action for damages is, like other business questions, ordinarily a matter of internal management and is left to the discretion of the directors, in the absence of instruction by vote of the stockholders. Courts inter

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fere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; and, as a rule, only after application to the stockholders, unless it appears that there was no opportunity for such application, that such application would be futile (as where the wrongdoers control the corporation), or that the delay involved would defeat recovery. In the instant case there is no allegation that the United Copper Company is in the control of the alleged wrongdoers or that its directors stand in any relations to them or that they have been guilty of any misconduct whatsoever. Nor is there even an allegation that their action in refusing to bring such suit is unwise. No application appears to have been made to the stockholders as a body or indeed to any other stockholders individually; nor does it appear that there was no opportunity to make it, and no special facts are shown which render such application unnecessary. For aught that appears, the course pursued by the directors has the approval of all the stockholders except the plaintiffs. The fact that the cause of action is based on the Sherman Law does not limit the discretion of the directors or the power of the body of stockholders; nor does it give to individual shareholders the right to interfere with the internal management of the corporation.

But even if the circumstances were such as to justify individual stockholders in seeking the aid of the court to enforce rights of the corporation, it is clear that their remedy is not at law. The particular equitable relief

1 Hawes v. Oakland, 104 U. S. 450; Quincy v. Steel, 120 U. S. 241; Corbus v. Alaska Treadwell Gold Mining Co., 187 U. S. 455; Delaware & Hudson Co. v. Albany & Susquehanna R. R. Co., 213 U. S. 435. See Macon, D. & S. R. Co. v. Shailer, 141 Fed. Rep. 585.

2 Hawes v. Oakland, 104 U. S. 450, 454; Quincy v. Steel, 120 U. S. 241. The latter case was an equity suit by a stockholder to enforce a purely

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