Opinion
Nos. 7590, 7610-7617.
January 12, 1942.
F.C. Nicodemus, Jr., and A. Perry Osborn, both of New York City, Henry A. Gardner and Helen W. Munsert, both of Chicago, Ill., Robert H. McRoberts, of St. Louis, Mo., Walter S. Underwood, Wendell J. Brown, Meyer Abrams, Edward R. Johnston, and Albert K. Orschel, all of Chicago, Ill., Edwin S.S. Sunderlund and T. O'G. FitzGibbon, both of New York City, Henry F. Tenney, Roger R. Leech, Roy O. West, Wm. A. McSwain, Wm. H. King, Jr., Wm. S. Warfield, III, Wm. F. Peter, Frederic Burnham, Irving Goldsmith, Donald M. Graham, E.S. Ballard, Minier Sargent, Frederick Secord, and John H. Boord, all of Chicago, Ill., Robert V. Massey, Jr., of Philadelphia, Pa., Joseph E. Nolan, of Chicago, Ill., Reese D. Alsop, of New York City, Wm. B. Hale and Sidney K. Jackson, both of Chicago, Ill., W.A.W. Stewart, McCready Sykes, Frederick J. Moses, and Guido Pantaleoni, all of New York City, and Malcolm Mecartney, of Chicago, Ill., for appellants.
Lee Walker, of Chicago, Ill., Cassius M. Clay, of Washington, D.C., Kenneth F. Burgess, Douglas F. Smith, Geo. Ragland, Jr., and Walter H. Jacobs, all of Chicago, Ill., Sanford H.E. Freund, of New York City, Anthony Michel. Irving Herriott, A.J. Pflaum, and Cobert EtsHokin, all of Chicago, Ill., Boykin C. Wright, and Robert M. Becket, both of New York City, Jesse L. Cook, of Chicago, Ill., Julius Weiss, John B. Marsh, and Edward E. Watts, Jr., all of New York City, A.N. Whitlock, C.S. Jefferson, and M.L. Bluhm, all of Chicago, Ill., Fred N. Oliver, Willard P. Scott, and George J. Miller, all of New York City, and Daniel Knowlton, Chief Counsel, Interstate Commerce Commission, of Washington, D.C., for appellees.
Before EVANS, and KERNER, Circuit Judges, and LINDLEY, District Judge.
We are asked to modify our opinion announced in this case, by striking therefrom three paragraphs, beginning with the words, "We are satisfied that the evidence supports the finding of the Commission," appearing on page 15 of the opinion [124 F.2d at page 764] and ending with the words, "* * * which must be at the bottom of all reorganization plans."
Because counsel seemingly misunderstand our position upon the failure of the Commission to make necessary findings of value so as to allocate the new securities amongst existing bondholders and creditors, we deem it necessary, or at least advisable, to make our position clear.
It was, and is, our opinion that the I.C.C. made a sufficiently specific finding as to value of the equity represented by the common and preferred stock of the Debtor, so as to permit the court to intelligently review this issue, the determination of which is necessary to a disposition of the other questions presented by the reorganization plan.
On these other questions there was lacking the necessary findings by the I.C.C. to permit us to approve or disapprove of the value of the old securities and the value of the new securities, given in exchange for them.
Now, to make our position entirely clear, we add this memorandum and hold that the finding of the I.C.C. as to absence of value of old common and preferred stock, is specific, definite and certain, and fully meets the rule which requires finding on values of assets.
Second, we meant to hold, and do hold, that the evidence supports this finding, that there is no value to either the common or preferred stock of debtor. It follows that this branch of the case, the value of the equity of the debtor, evidenced by the common and preferred stock, is closed, and the I.C.C. need not further investigate or make further finding on this issue unless it is convinced that changed conditions in railroad earnings warrant it. In other words, the I.C.C. has jurisdiction of the matter and may, although it is not required to do so, re-examine the evidence, or receive additional evidence, if in its judgment, justice to the parties requires it.
The motion to amend the opinion is denied.