Summary
In Tomow, supra, it was determined that title to land and the right to manage it and sell it was in MEI and the voting trust.
Summary of this case from Daly v. Natural Resources BoardOpinion
No. 508.
Argued June 4, 1973. —
Decided June 29, 1973.
APPEALS from parts of a judgment of the circuit court for Menominee county: WILLIAM J. DUFFY, Circuit Judge of the Fourteenth Circuit, Presiding. Affirmed in part; reversed in part.
For the appellant there were briefs by Welsh, Trowbridge, Planert Schaefer of Green Bay, and oral argument by Vance M. Waggoner, of Green Bay.
For the plaintiffs-respondents there was a brief by Joseph F. Preloznik and Mary E. Van Gemert, both of Madison, and oral argument by Mr. Preloznik.
For the defendants-respondents there were briefs by Foley Lardner of Milwaukee, and oral argument by Gilbert W. Church of Milwaukee.
Action by Henry L. Tomow, Sr., and 161 other members of the Menominee Indian Tribe who are or were at all times material, registered shareholders and/or holders of voting trust certificates of Menominee Enterprises, Inc. (hereinafter "plaintiffs"), on behalf of themselves and all other shareholders similarly situated; against Menominee Enterprises, Inc. (hereinafter "MEI"); the officers and directors of "MEI"; the trustees of the Menominee common stock and voting trust (hereinafter "voting trust"); and N.E. Isaacson Associates, Inc. (hereinafter "Isaacson") who, together with "MEI," entered into a partnership known as "Lake of the Menominees," (hereinafter "LOM") challenging the validity of the "voting trust," the power of the trustees of the "voting trust" to authorize the sale of land to non-Menominees and the validity of certain land transfers made to "LOM."
The facts upon which the present action is based are, for the most part, without dispute and the result of a stipulation between the parties.
The Menominee Indian Tribe was well established in Wisconsin two hundred years before the European settlers began their westward movement across the United States. Except for a small cession of land for the Stockbridge-Munsee Reservation, the last of a series of treaties between the United States government and the Menominee Tribe was the "Treaty of Wolf River" of 1854. Pursuant to the treaty, the Menominees ceded land to the United States and the United States agreed to give to the Indians land of which the present Menominee county was the largest part.
Traditionally, all tribal affairs were handled by the tribe in general councils and by the advisory council. The general councils were meetings open to the entire tribe at which all adult enrolled Menominees could vote. The advisory council, created in 1928, was an elected body that concerned itself primarily with business management of day-to-day affairs. Its action could be overturned by a vote of a general council or by the secretary of the interior.
In 1953, Congress, by concurrent resolution, instructed the secretary of the interior to recommend legislation for the withdrawal of federal supervision over the Menominees as well as several other named tribes and in 1954, Congress passed the "Termination Act." After publication of the secretary of interior's proclamation in the Federal Register, termination became effective midnight, April 30, 1961. The proclamation provided for the transfer of the tribe's property which was held in trust by the federal government and the end of any supervision and control by it over the Menominees and the Menominee Reservation.
68 U.S. Stat. at L., p. 250, as amended, 70 U.S. Stat. at L., p. 549, 72 U.S. Stat. at L., p. 290, 74 U.S. Stat. at L., p. 867; 25 U.S.C. § 891-902.
26 Fed. Reg., No. 82, April 29, 1962, at page 3726.
In November, 1957, a general council of the tribe created the "Menominee Co-ordinating and Negotiating Committee" (hereinafter "C. N. Committee"). The function of the four-member committee was to develop a termination plan such as was called for by the "Termination Act" itself. Authority for the preparation of the termination plan came from the general council which created it under the advisory council.
In December of 1957, the final rolls of membership in the Menominee Tribe were closed and the membership list of 3,270 persons was published in the Federal Register. A "Termination Plan" was proposed to a general council in a series of three meetings in January of 1959 and as amended by those present, it was approved by a 91 to 16 vote on January 17, 1959. It was also approved by the secretary of the interior.
Part of the plan called for the creation of the "Menominee common stock and voting trust." Individual members of the Menominee Tribe did not enter into written agreements creating the voting trust and consequently, whatever legal assent which exists on the part of the Menominees to the establishment of the voting trust emanates from the votes of the general council. At all times material to this action, there were seven trustees of the voting trust: four enrolled members of the Menominee Tribe elected by the general council and three nontribal members elected jointly by the advisory council and C.N. Committee, subject to confirmation by the general council. The affirmative vote of five trustees is needed to take any action. Under the provisions of the "Termination Plan" the selection of the trustees occurred in advance of the termination date and before any trust in fact existed. While the voting trust is in existence, it may be terminated by the tribal members who become holders of the voting trust certificates in ten, twenty or thirty years. Under the original plan, the certificates could not be sold or negotiated before January 1, 1971, with "MEI" having the option to purchase the certificates at the proposed sales price, and, in the absence of the exercise of the option, the state of Wisconsin has the same right. In May of 1969, the certificate holders were given the opportunity to extend the January, 1971, deadline until January 1, 1974, and approximately 51.2 percent of the certificate holders voted for the extension.
Contemporaneously, with the selection of the initial trustees, the plan also called for the creation of a corporation under Wisconsin law to be known as Menominee Enterprises, Inc. ("MEI"). The members of the C.N. Committee, as individuals, signed as incorporators of "MEI." Under the provisions of the plan, the voting trustees, prior to the organization meeting of the corporation, will informally name the individual directors of "MEI" and those persons will be named in the articles of incorporation and will formally be elected by the subscribers of all of the stock the — C.N. Committee — at the organization meeting.
The principal purpose of "MEI" is to manage and operate all of the business and property, real and personal, transferred to the corporation by the United States of America, pursuant to 25 U.S.C. § 897. Although "MEI" owns and operates a sawmill and smaller, related businesses, its principal asset is land. By two deeds, both dated April 26, 1961, and recorded in the office of the register of deeds of Menominee county, Wisconsin, the United States conveyed to "MEI" all of the land which, for practical purposes, previously constituted the Menominee Indian Reservation and which presently constitutes Menominee county, Wisconsin. About one quarter of a million acres comprise Menominee county.
Under the articles of incorporation, "MEI" was granted the authority to issue shares of stock and the "MEI" directors accepted the subscription of the committee. The secretary of the interior then advanced $327,000 of the funds he was holding in trust and this money was used to pay for the stock. "MEI" issued a single stock certificate to the committee for 327,000 shares of stock. The C.N. Committee signed the voting trust agreement and named as trustees those individuals previously approved by a general council and transferred the stock "MEI" held in its name to the voting trust. The trustees then issued voting trust certificates to the enrolled Menominees as evidence of their interests in the stock the trustees held, with each certificate representing 100 shares of stock in "MEI." In the case of minors and incompetents, the certificates were turned over to the "Menominee assistance trust," a second trust provided by the plan with the First Wisconsin Trust Company acting as trustee. It was stipulated that each step required to be taken under the "Termination Plan" for the organization and activation of "MEI" and the voting trust were in fact taken.
The plan also provided that upon termination, $1,500 was to be distributed to each enrolled Menominee. After the other assets were transferred to "MEI," it issued a $3,000 income bond to each individual Menominee. The bond is payable on December 1, 2000, and pays 4 percent interest or $120 per year.
On August 10, 1967, the board of directors of "MEI" and the trustees of the voting trust jointly passed a resolution. Eight of nine directors and all of the then seven trustees unanimously adopted the following resolution:
"WHEREAS, there is no other means sufficiently capable of accomplishing the economic improvement of the Menominee community except by adoption and implementation of the ERNST ERNST REPORT; and
"WHEREAS, to provide necessary tax resources for Menominee County and/or the Town of Menominee and for the relief of taxation on Menominee Enterprises, Inc. (and the residents of Menominee County, Wisconsin), and to assure continued Menominee ownership thereof:
"I. BE IT RESOLVED, that Menominee Enterprises, Inc. is authorized to proceed with the recommendations of the Ernst Ernst Report as opportunity and feasibility permit; and
"II. RESOLVED FURTHER, that the Corporation is authorized to define economic development zones on its land in Menominee County, Wisconsin, not to exceed 8,750 acres in areas to be defined and described from time to time by the Menominee Common Stock Voting Trust, and/or the shareholders of the Corporation, whichever then holds the common stock; and
"III. RESOLVED FURTHER, that pursuant to Article XII of the Articles of Incorporation of Menominee Enterprises, Inc. within such economic development zones warranty deeds may issue as a form of land transfer, provided a sufficient form of quality control is a condition of such transfer, and provided always that sufficient areas of land on lakeshore be reserved for Menominee use." (Emphasis added.)
The "Ernst Ernst Report" referred to in the resolution was a technical assistance study of Menominee county by the economic development administration which recommended that in order for the county to achieve economic self-sufficiency, the county's recreational resources be developed by the creation of several large lakes from smaller ones and the development of the cottage sites around them. The "Termination Plan" itself had stated only that the area had excellent commercial recreational possibilities, the development of which was being considered.
Ernst Ernst, Technical Assistance Study of the Potential Tourism and Industrial Development in Menominee County, Wisconsin, C-164-66 (NEG) Economic Development Administration, U.S. Department of Commerce, March, 1967.
Art. XII of the articles of incorporation of "MEI" referred to in the resolution contains the following provision governing the sale of land by the corporation: "Unless otherwise authorized by the affirmative vote of the holders of not less than two thirds of the outstanding shares of stock entitled to vote thereon, the corporation shall have no authority to sell, exchange, assign, convey or otherwise transfer all or any portion of the real property owned by the corporation; . . . provided, further, that the board of directors, or the appropriate officers at the direction of the board of directors, shall have authority to sell or to convey to individuals, who were enrolled tribal members under section 893, Title 25, U.S.C. (final roll) or their heirs-at-law, individual parcels which in the aggregate will not exceed 14,500 acres for home sites, agricultural use, or other development, . . ." (Emphasis added.)
On September 13, 1967, a referendum was held in which all Menominees who held certificates (except minors and incompetents whose interests were voted by their special trustee, First Wisconsin Trust Company) were invited to express their opinion on the resolution of August 10, 1967. Of a total of 109,125 votes cast, 97,738 were for and 11,387 were against the resolution. Among the "yes" votes were 79,362 votes cast by First Wisconsin Trust Company. The referendum was announced as "advisory" and the written material distributed referred to the use of warranty deeds.
On July 9, 1968, "MEI" and N.E. Isaacson entered into an agreement whereby they established a joint venture to be known as "Lake of the Menominees" ("LOM") which was, however, to be governed by the Wisconsin Uniform Partnership Act. By the terms of the agreement of July 9, 1968, the partnership was entered into for the purpose of holding, developing and selling to persons including non-Menominees certain lands consisting of 5,170 acres located within the economic development zone referred to in the joint resolution of August 10, 1967.
The agreement of July 9, 1968, was contingent upon approval by the trustees which was given unanimously by them in July of 1968. "LOM" undertook a substantial and extensive land and lake development project known as "Legend Lake" and among other things, approximately 2,000 recreational homesites out of 2,600 such sites have been sold and water-level control dams and roads have been constructed. Subsequently, between the dates of September 12, 1968, and April 5, 1971, the approximately 5,170 acres referred to in the partnership agreement of July 9, 1968, were conveyed by "MEI" to "LOM" partnership by means of seven warranty deeds, all of which were executed and recorded in the office of the register of deeds of Menominee county, Wisconsin, prior to the commencement of the present action. Of the 5,170 acres conveyed, 1,333 acres valued at $150 per acre, represented "MEI's" initial contribution to the "LOM" joint venture. By the agreement, "MEI" gave to "LOM" the option to purchase an additional 3,837 acres also at $150 per acre.
On September 30, 1968, "MEI" and Isaacson by written agreement decided that Isaacson was to be the "managing partner" of "LOM" and to facilitate the management, development and sales of land that N.E. Isaacson, as president of Isaacson, and Ralph Voss, as vice-president and assistant secretary, would have power of attorney to execute all deeds of conveyance from "LOM" to any purchaser in the ordinary course of business.
The agreement of July 9th was performed to a substantial degree and in 1969, Isaacson and "MEI" agreed to increase the number of lots to be developed and sold from 1,800 to 2,600, all of them to be laid out on the land conveyed by the seven warranty deeds. On or about March 11, 1969, "LOM" applied for a permit to construct a third dam in the Legend Lake project. On October 15, 1971, Isaacson asked "MEI" if it would agree to try to sell out the project in 1972 and to incur additional selling costs beyond the agreement ceiling of 30 percent. A motion (of the "MEI" board) was passed to refer the matter to "LOM" management committee to act within its discretion.
The present action was filed in the circuit court for Menominee county, Wisconsin, on October 25, 1971, and a lis pendens containing the names of the parties, the object of the action, and a description of the land involved in the action was filed with the office of the register of deeds in Menominee county on the same day. The first count of plaintiffs' complaint alleges that neither they nor any other "MEI" shareholder ever entered into a written voting trust agreement creating a voting trust for the purpose of conferring upon defendant trustees or any other trustees the right to vote or otherwise represent their shares in "MEI." It goes on to allege that the defendant trustees of the voting trust are and have been unlawfully exercising the voting rights of plaintiffs and other shareholders in that they have elected the defendant directors of "MEI" and excepting trustees Ignace and Deer, they have participated in, approved and/or ratified a decision of the defendant directors to sell "MEI" land to nonenrolled Menominee tribal members in violation of the articles of incorporation and in usurpation of plaintiffs' rights. Likewise, they contend that pursuant to the trustees' approval, the officers and directors of "MEI" entered into an agreement with defendant Isaacson purporting to bind "MEI" to a joint venture involving the sale of land to non-Indians.
Plaintiffs' complaint as a second count, alleges that with the exception of certain limited sales of real property to enrolled tribal members, "MEI's" articles of incorporation specifically bars the sale of corporation real property unless it is authorized by the affirmative vote of the holders of not less than two thirds of the outstanding shares of stock entitled to vote thereon, and in spite of the fact that no sale of "MEI" real property has ever been authorized by the holders of not less than two thirds of the outstanding shares of stock entitled to vote thereon, the officers and directors of "MEI" have purported to sell corporate real property through the "LOM" joint venture.
Pursuant to their first count, relating to the validity of the "voting trust," plaintiffs demanded judgment declaring the "voting trust" null and void; an order permanently enjoining the "MEI" directors from attempting to exercise in any way the rights of the plaintiffs, a determination that the joint venture agreement of July 9, 1968, between Isaacson and "MEI," except as to the rights of prior good faith purchasers, is null and void; that the declaration in the July 9th agreement given to N.E. Isaacson and Ralph Voss power of attorney to execute all deeds of conveyance from "LOM" to any purchaser is null and void; an order calling for the election of a new board of directors; and an order requiring defendants "MEI" and Isaacson to recovery to "MEI" all properties formally transferred to "LOM" which had not been conveyed to a good faith purchaser at the time the defendants learned of the lawsuit, or at the time of filing the action, whichever is earlier.
As judgment on the second count of their complaint, plaintiffs demanded that a special shareholders meeting be called for the purpose of electing new directors of "MEI;" that the "LOM" agreement be declared null and void; that the officers and directors of "MEI" be enjoined and restrained from honoring its contract with Isaacson in any way whatsoever; an order requiring the officers and directors of "MEI" to make an accounting and to pay into court all money and assets accounted for; and other relief concerning the liability of the officers and directors to "MEI" for all losses and damages occasioned by their acts.
On April 21, 1972, the plaintiffs, by stipulation and with court approval, filed a supplemental complaint which added certain defendants because of their election as trustees of the "voting trust" or directors of "MEI." The supplemental complaint also alleged that the joint venture agreement dissolved December 31, 1971, unless extended; that Isaacson and "MEI" did not extend it; that another agreement for the sale of land to non-Menominees would require authorization by the holders of at least two thirds of the outstanding shares entitled to vote or that is to say, enrolled Menominees.
They also allege that since termination of the agreement, neither two thirds of the enrolled Menominees nor two thirds of the trustees have authorized new sales to non-Menominees and that at the present time, "LOM" could not obtain a two-thirds vote of authorization from the trustees, as evidenced by the affidavits by six of the eleven trustees, stating that they were opposed to land sales to non-Menominees and would vote against such sales were a vote taken; and that in spite of this, "MEI" and Isaacson are and threaten to continue to sell land to non-Menominees.
The action came to trial before the court, without a jury, on May 8, 1972. In its written decision of July 24, 1972, the trial court found that although the "voting trust" was not invalid, art. XII of the articles of incorporation of "MEI" relating to the sale of land by the corporation was ambiguous and consequently heard extrinsic evidence concerning the basic intent of the parties in the adoption of art. XII. After a review of the evidence upon which it relied, the court concluded that the reference to "two thirds of the outstanding shares of stock entitled to vote thereon . . ." referred to two-thirds of the enrolled Menominees and not to a two-thirds vote of the trustees. The court then granted an injunction against any further sales of land with the understanding that jurisdiction would be retained to consider evidence in support of other remedies at a later date.
Subsequent to the July 24th decision, the defendants, by orders to show cause, brought motions seeking to clarify and limit the earlier injunction. The parties agreed at the time of the hearing on these motions that there were 121 sales of lots, estimated at approximately $900,000 in which offers of purchase had been accepted, but the delivery of deeds and formal closing had not yet occurred. In six of these sales, the offer and acceptance had occurred prior to October 24, 1971, the date of filing of the lis pendens.
Isaacson contended that the conveyance of the seven warranty deeds were executed conveyances, and even though made in an irregular manner under the court's earlier ruling, they should not be impeached or disturbed because of any irregularity in the exercise of the unquestioned corporate power. Although it recognized the rule of law relied on, the circuit court, nevertheless, concluded that the transfer of 5,170 acres of land by seven deeds by "MEI" to "LOM," all occurring prior to the filing of the lis pendens, were not entitled to the status of completed or executed transactions.
From those parts of the court's interlocutory judgment that held "Article XII of MEI's" articles of incorporation ambiguous; that held the seven conveyances from "MEI" to "LOM" prior to the commencement of the action to be without necessary stockholder approval and, therefore, an improper exercise of the corporation's power to convey land; that held sales made subsequent to the commencement of the action were subject to the continuing jurisdiction of the court because the seven conveyances from "MEI" to "LOM" were not executed corporate transactions; and which enjoined the defendants from any further sales of land to non-Menominees, Isaacson and the other named defendants have appealed. Defendant "MEI," however, is not participating in this appeal.
From that part of the interlocutory judgment holding the "voting trust" valid under Wisconsin law, the plaintiffs have appealed.
Three issues are presented on this appeal.
1. Did the trial court err in holding that the Menominee common stock and voting trust was not invalid because it was contrary to controlling federal and state law and the United States Constitution;
2. Did the trial court err in holding that art. XII of the articles of incorporation of "MEI" was ambiguous and, therefore, a proper matter for judicial construction; and
3. Did the trial court err in holding that the unsold land which was conveyed by "MEI" to "LOM" without the approval of the individual tribal members was subject to plaintiffs' lis pendens and an injunction prohibiting its sale?
Validity of voting trust.
The "Termination Act" which mandated the complete withdrawal of federal supervision and control over the Menominee Tribe called for the formulation of a plan for the future control of tribal property and service functions by the tribe itself. 25 U.S.C. § 896 of the federal statute provided that the plan, when completed, was to be submitted to the secretary of the interior who ". . . shall accept such tribal plan as the basis for the conveyance of the tribal property if he finds that it will treat with reasonable equity all members on the final roll of the tribe prepared pursuant to Section 893 of this title, and that it conforms to applicable Federal and State law." (Emphasis added.)Contrary to the contentions of the plaintiffs who are as to this issue appellants on appeal, both the secretary of the interior and the trial court were satisfied that the mandate of 25 U.S.C. § 896 was complied with. After a review of the various arguments which the plaintiffs have raised, this court reaches the same conclusion.
The plaintiffs' first contention in support of their conclusion that the voting trust here involved is invalid is that Wisconsin's voting trust statute, sec. 180.27, Stats., was not complied with. Sec. 180.27, was originally enacted by sec. 7 of ch. 731, Laws of 1951, and now provides:
"Voting trusts and agreements among shareholders.
(1) Any number of shareholders of a corporation may create a voting trust for the purpose of conferring upon a trustee or trustees the right to vote or otherwise represent their shares by entering into a written voting trust agreement specifying the terms and conditions of the voting trust, by depositing a counterpart of the agreement with the corporation at its registered office and by transferring their shares to such trustee or trustees for the purposes of the agreement. Such trustee or trustees shall keep a record of the holders of voting trust certificates evidencing a beneficial interest in the voting trust, giving the names and addresses of all such holders and the number and class of the shares in respect of which the voting trust certificates held by each are issued, and shall deposit a copy of such record with the corporation at its registered office. The counterpart of the voting trust agreement and the copy of such record so deposited with the corporation shall be subject to the same right of examination by a shareholder of the corporation, in person or by agent or attorney as are the books and records of the corporation, and shall be subject to examination by any holder of a beneficial interest in the voting trust, either in person or by agent or attorney, at any reasonable time for any proper purpose.
"(2) Agreements among shareholders regarding the voting of their shares shall not be subject to the provisions of this section regarding voting trusts."
The statute originally limited a voting trust to not more than twenty years; ten years longer than the Model Code. Even the twenty-year limitation was omitted by ch. 399 of the Laws of 1953. Such unlimited duration is not common to the statutes of most other states. See Henn, Law of Corporations (1970), p. 392, sec. 197. Sub. (2) of sec. 180.27, exempting shareholder agreements from the provisions of the voting trust statute, was created by sec. 15, ch. 285, Laws of 1971.
Under the above statutes, pursuant to an agreement, shareholders transfer their shares to the voting trustees which transfers are in turn recorded on the corporation's books, thereby making the trustees the record holders. During the period of the trust and pursuant to the trust agreement, the trustees vote the shares. In exchange for the shares, voting trust certificates which represent the equitable interest in the shares transferred, and any shares which might be awarded as dividends are issued by the trustees to the original shareholders.
In material part, sec. 180.27, Stats., provides that "Any number of shareholders of a corporation may create a voting trust . . . by entering into a written voting trust agreement . . . ." The thrust of the plaintiffs' argument is that the individual enrolled members and not the C.N. Committee whose members signed as incorporators of "MEI" and who also signed the voting trust agreement were the "shareholders" of the corporation for purposes of entering into the agreement.
Under the articles of incorporation, "MEI" was granted the authority to issue shares of stock and the "MEI" directors accepted the subscription of the C.N. Committee which was originally created by the general council to develop the Termination Plan. The secretary of the interior then advanced $327,000 of the funds he was holding in trust and this money was used to pay for the stock. "MEI" issued a single stock certificate to the committee for 327,000 shares of stock. The C.N. Committee signed the voting trust agreement and named as trustees those individuals previously approved by a general council and transferred the stock "MEI" held in their name to the voting trust. The trustees then issued voting trust certificates to the enrolled Menominees as evidence of their interests in the stock the trustees held, with each certificate representing 100 shares of stock in "MEI."
The defendants contend that the voting trust was formed in exact compliance with sec. 180.27, Stats. Shares in "MEI" were issued to members of the C.N. Committee who then transferred the stock to the trustees on the basis of a written instrument. The shareholders thus created the trust by "entering into a written voting trust agreement" as required by statute. Likewise, this procedure conformed exactly to the provisions in the Termination Plan which was agreed upon by the Menominees.
Plaintiffs contend that the vote of the general council in January of 1959, which approved the Termination Plan — including the voting trust agreement — could not be a substitute for individual "shareholder" approval. This argument, together with the cases which are cited by the plaintiffs, are all predicated on the proposition that individual Menominees had been issued "shares" of stock in "MEI" prior to the formation of the trust.
While it is clear that 25 U.S.C. § 893, referring as it does to the "rights or beneficial interests" of each of the enrolled Menominees, "shall constitute personal property . . . evidenced by a certificate of beneficial interest which shall be issued by the tribe" gave to each enrolled Menominee at the very least an undivided one third 270th interest in the assets of "MEI," such an interest cannot be analogous to a "share of stock." Sec. 896 of Title 25, U.S.C. relating to the Termination Plan which the tribe was to formulate, states that "[t]o the extent necessary, the plan shall provide for such terms of transfer pursuant to Section 897 of this title, by trust or otherwise, as shall insure the continued fulfillment of the plan." (Emphasis added.) Sec. 897 provides that "[o]n or before April 30, 1961, the Secretary [of the Interior] is authorized to transfer to the tribal corporation or to a trustee of the Secretary's choice . . . the title to all property, real and personal, held in trust by the United States for the tribe." (Emphasis added.)
The two deeds by which the United States conveyed what now constitutes Menominee county were conveyed to "MEI," not to the individual enrolled Menominees. Likewise, the secretary of the interior advanced the $327,000 of the funds held in trust, not to each enrolled Menominee, but rather to the committee who in turn used it to pay for the stock it had previously subscribed to. Prior to termination, individual enrolled Menominees never had certificates or control over their interests in tribal assets. Indeed, the assets were held in trust by the federal government and were subject to tribal and federal law and not corporate law as the plaintiffs contend.
While it is clear that the original draftees of sec. 180.27, Stats., never contemplated a factual situation like the one presented in this case, it likewise is manifestly clear that the procedures here employed did not run counter to the statute. The trial court agreed and stated:
"I am impressed by the reasonableness of the method established in the plan contrasted with the unwieldy procedure of having the shares issued to the individual Menominees some of whom would be minors or incompetents and then placed in trust under procedural requirements of section 180.27. It is obvious that a trust arrangement was considered in the best interests of the Menominees in accordance with their own plan. It seems to me the procedure adopted to accomplish this was eminently sensible."
Plaintiffs next contend that the certificate of beneficial interest representing tribal members' rights or beneficial interests in tribal property was issued, transferred and cancelled in violation of 25 U.S.C. § 893. Sec. 893 of Title 25, U.S.C. after setting forth a very precise procedure for determining who will be considered an enrolled Menominee with the initial decisions by the tribe, followed by an appeal right to the secretary of the interior, provides:
"When the Secretary has made decisions on all appeals, he shall issue and publish in the Federal Register a Proclamation of Final Closure of the roll of the tribe and the final roll of the members. Effective upon the date of such proclamation, the rights or beneficial interests of each person whose name appears on the roll shall constitute personal property and shall be evidenced by a certificate of beneficial interest which shall be issued by the tribe. Such interests shall be distributable in accordance with the laws of the State of Wisconsin. Such interests shall be alienable only in accordance with such regulations as may be adopted by the tribe."
The certificate itself was executed on June 17, 1964, by James G. Frechette, chairman, Menominee advisory council, and begins as follows:
"This is to certify that the persons whose names are. listed in the schedule attached hereto, identified as `Final Roll-Menominee Tribe of Indians of Wisconsin' (Vol. 22, FEDERAL REGISTER Number 240, pages 9951-9972, inclusive) are the holders (hereinafter sometimes called `Tribal Members') of undivided equal shares in this Certificate of Beneficial Interest, which evidences the rights and interests of each such person and all of them and the personal representatives, heirs or next of kin of deceased Tribal Members (hereinafter sometimes called `lawful distributees') to all property, real and personal, now or hereafter, legally or beneficially owned by the Menominee Indian Tribe of Wisconsin. This Certificate has been issued by said Tribe as of June 17, 1954, pursuant to the provisions of section 391, Title 25 U.S.C. and is the Certificate of Beneficial Interest therein described."
It goes on to provide that it is delivered to the C.N. Committee who shall hold it on behalf of the tribal members or their lawful distributees, "According to the terms of the certificate." Thereafter, the C.N. Committee "on behalf of the tribal members will cancel the certificate in accord with the terms and provisions of the `Plan. . .'" The provisions of the plan relating to the certificate provide that:
"Description of economic plan. The economic plan, designed to promote the highest beneficial use of the communal property, is set forth in six basic documents: (1) Articles of Incorporation of Menominee Enterprises, Inc., (2) By-Laws of Menominee Enterprises, Inc., (3) a common stock and voting trust, (4) a bond indenture, (5) a Menominee Assistant trust, (6) a Certificate of Beneficial Interest.
"One Certificate of Beneficial Interest in form attached will be issued pursuant to section 893 Title 25 U.S.C. with list attached thereto of the tribal roll of 3,270 members as of June 17, 1954 (as finally proclaimed.) The Certificate will be issued as of June 17, 1954, in advance of termination date, and will be held by the Coordinating and Negotiating Committee until that date. At that time, the Committee will mark it `cancelled' and file it with its records.
"It is a part of this Plan that (1) the issue of stock to the said Coordinating and Negotiating Committee, (2) the issue of voting trust certificates to tribal members and lawful distributees of deceased members upon deposit of the stock in the Common Stock and Voting Trust, (3) the issue of income bonds, (4) the transfer of real and personal property to the said Coordinating and Negotiating Committee and/or to Menominee Enterprise, Inc., or any subsidiary, (5) the transfer of real and personal property to any public body; shall all be in substitution for and consideration of cancellation of the Certificate of Beneficial Interest and no one shall thereafter have any rights or interest in such Certificate."
The plaintiffs contend that the chairman of the advisory council had no authority to issue the certificate since by express terms of 25 U.S.C. § 893 only the "tribe" could issue the certificate. Likewise, they contend that the chairman had no authority to authorize the C.N. Committee to cancel the certificate in accordance with the terms and provisions of the Termination Plan. Assuming the chairman did have authority to issue the certificate, the plaintiffs contend the C.N. Committee did not have authority to cancel the certificate in exchange for "MEI" stock.
First of all, by its very terms, the primary purpose of the certificate of beneficial interest was to put the tribe on record as approving the final roll.
The certificate was signed by the chairman of the advisory council for the tribe because he was the highest elected official of the tribe. Furthermore, the transfer to the C.N. Committee of the certificate and its subsequent cancellation of the certificate were in strict compliance with both the terms of the certificate and with the federal statute. Sec. 893 provided that the interests represented by the certificate could be "alienable" only in accordance with regulations adopted by the tribe. The tribe did adopt the plan calling for the transfer of tribal assets to the tribal corporation and trust. The adoption of the plan "by the tribe" and its use as "the basis for the conveyance of the tribal property" were also authorized by the federal statute. (25 U.S.C. § 896, 897)
Plaintiffs' constitutional attack based on both the due process and equal protection clauses are also without merit. As stated before, the individual Menominees were not "shareholders" as that term is used in sec. 180.27, Stats., and consequently plaintiffs' argument that no other "shareholders" of a Wisconsin corporation could be made to enter into a voting trust without their individual written approval must fail for that reason. Plaintiffs' argument that the procedures here employed deprived them of their personal property without due process of law totally disregards the fact that the Termination Plan was approved by the tribe.
We conclude that the trial court's interlocutory judgment herein, to the extent that it held the Menominee common stock and voting trust to be valid was correct. Ambiguity of trust.
Defendants contend that the trial court erred in declaring art. XII of the articles of incorporation of "MEI" ambiguous and, therefore, subject to judicial construction by resort to extrinsic evidence. The plaintiffs who, as to this issue, are respondents, support the determination of the trial court. All parties are in agreement that extrinsic evidence bearing on the intent of art. XII may only be resorted to once an instrument has been declared ambiguous in light of circumstances surrounding it at the time of its execution. In re Fortwin Trust (1973), 57 Wis.2d 134, 203 N.W.2d 711; Estate of Breese (1959), 7 Wis.2d 422, 96 N.W.2d 712.Art. XII in material part provides:
"Unless otherwise authorized by the affirmative vote of the holders of not less than two-thirds of the outstanding shares of stock entitled to vote thereon, the corporation shall have no authority to sell, exchange, assign, convey or otherwise transfer all or any portion of the real property owned by the corporation: . . ." (Emphasis added.)
The italicized language in art. XII is the subject of dispute between the parties, as that language relates to "who" is entitled to vote on proposed sales of land to non-Menominees: the trustees of the voting trust or the individual enrolled Menominees. The trial court concluded that it was the intent of the Menominees in enacting art. XII that such power was to be retained by each enrolled Menominee. It first, however, declared art. XII ambiguous.
In regard to art. XII which along with the voting trust formed the very heart of the Termination Act itself, the trial court entered the following conclusions of law which were incorporated into the interlocutory judgment:
"3. Article XII of the Articles of Incorporation of Menominee Enterprises, Inc., requiring the `affirmative vote of the holders of not less than two-thirds of the outstanding shares of stock entitled to vote' before the corporation may sell land to non-Menominees is ambiguous as it relates to the period of time during which the Corporation's stock is held by the Voting Trust.
"4. The seven conveyances of land made by Menominee Enterprises, Inc. to Lakes of the Menominees, a partnership, prior to the commencement of this action, were made without the necessary approval required by Article XII of the Articles of Incorporation and were an improper exercise of the Corporation's power to convey land and are, therefore, invalid." (Emphasis added.)
Although the written decision of the trial court does make reference to several of the provisions of the voting trust agreement, it is evident that the court in determining that individual Menominees and not trustees were authorized to approve land sales to non-Menominees, placed principle reliance on art. XII itself. We think the authorities are to the contrary.
"The powers and duties of the trustees are to be determined from the trust agreement as a whole, not reading one provision to nullify another and thus defeat the trust." 5 Fletcher, Cyclopedia Corporations (1967 rev.), ch. 14, p. 433, sec. 2091.1.
"Powers granted to the trustees by the trust instrument are rarely confined to voting at the election of directors; often their authority specifies the power to vote in all respects as could a full owner of shares, including the right to `consent' to fundamental changes, increase or reduction of capital stock, sale of all assets, and liquidation of the corporation. The grant of power, however, must be explicit since the trustees are denied any power not clearly granted." 1 Hornstein, Corporation Law and Practice (1959), p. 298, sec. 212.
The question, therefore, is whether the voting trust agreement clearly grants authority to the trustees to sell land to non-Menominees. This court concludes that it does.
As prescribed by the Termination Plan, the powers of the trustees of the voting trust were spelled out in art. III of the voting trust as follows:
"III POWERS OF TRUSTEES 1. The Trustees, in respect of the stock held by them hereunder, are hereby vested as owners of such stock (without limitation except as herein otherwise expressly provided) with all of the rights, powers, and privileges of every kind and character, of owners thereof, including, without limiting the generality of the foregoing (a) the right to vote the same, as hereinafter provided, for every purpose, (b) the right to become parties to or prosecute or intervene in any suits or other legal or administrative proceedings affecting the stock deposited hereunder, the Company, or the powers, duties or obligations of the Trustees, and (c) the right to transfer all or any part of the Company's stock held hereunder into their names as Trustees or into the name "The Trustees of Menominee Common Stock and Voting Trust." (Emphasis added.)
General language at the beginning of art. III gives the trustees "all of the rights" of owners of the stock, subject to certain exceptions not applicable to the present dispute, followed by the very specific language of sub. (a) which grants to them the right to vote the shares "for every purpose."
Although referring to this language contained in art. III, the trial court at no time tried to reconcile it with its conclusion of ambiguity. Art. III certainly is clear enough and broad enough to authorize the sale of land to non-Menominees. Other language in the trust agreement indicates that certificate holders did not have the right to vote on land sales to non-Menominees.
Art. IV requires the approval of two thirds of the certificate holders before the trustees are permitted to sell the stock. The absence of similar provisions requiring the approval of certificate holders for land sales implies that approval of the certificate holders was not required for land sales.
Art. X of the trust specifically provides that:
"1. The Trustees may construe this agreement, and their construction made in good faith shall be conclusive and binding upon the parties hereto, . . .
Such a provision has been recognized in Wisconsin as being valid. Estate of Koos (1955), 269 Wis. 478, 492, 493, 69 N.W.2d 598. As reflected in their vote to permit "MEI" to enter into the partnership agreement with Isaacson, the trustees construed the trust agreement when read on the whole to permit such authorization for land sales on their part. Similarly, the trial court's decision stated that "[n]o attack is made by anyone on the good motives of the trustees."
The trial court's conclusion and the plaintiffs' argument on appeal revolves around what all parties recognize to be the basic concept of this and other voting trusts; namely, that the trustees vote the shares which they hold as an undivided unit. Consequently, they argue that the words "holders of two thirds of the outstanding shares" contained in art. XII becomes functionless when applied to the trustees since each has an interest in all of the shares. [In order to secure trustee approval under that provision, the board of directors of "MEI" must obtain a unanimous decision from all the trustees, else not one share will have been voted.] This, however, will automatically include 100 percent of the shares and thus, it is impossible for the voting trustees to vote two thirds of the outstanding shares on any matter since individual trustees do not hold divisible amounts of stock. There is but one stock certificate representing this common trust and all the trustees hold all the stock. [All must agree or not one share can be voted in approval of land sales. It is undisputed that the voting trustees unanimously approved land sales to non-Menominees.]fn_ As already pointed out, the holders of the shares during the existence of the voting trust were the voting trustees. While it is true that the language contained in art. XII may have no effect while the trust is still in existence and while the shares are being voted as a unit by the trustees, it will have a clear and unambiguous meaning after the trust no longer exists; an eventuality which was within the contemplation of all of the parties at the time the plan was adopted.
Clarified in memorandum opinion on motion for rehearing, post, p. 28a.
The following memorandum was filed on August 14, 1973.
We conclude that the trial court in holding art. XII of the articles of incorporation ambiguous was in error. Conveyance of land from "MEI" to "LOM."
In a supplemental decision, occasioned by orders to show cause brought by the defendants, the trial court held that certain lands conveyed to "LOM" by the approval of the trustees and which were subject to the plaintiffs' lis pendens, could be enjoined from further sale in spite of the rule that an executed conveyance, even though made in an irregular manner, will not ordinarily be upset because of the irregularity. The court's ruling was clearly premised on its belief that art. XII was ambiguous and that only enrolled Menominees could authorize the sale of land to non-Menominees.Since the trial court was in error on its original premises, it was likewise in error to enjoin the sale of land held by "LOM."
By the Court. — That part of the interlocutory judgment which held the voting trust valid is affirmed. Those parts of the judgment which held art. XII of the articles of incorporation ambiguous; which interpreted that only enrolled Menominees could approve land sales to non-Menominees; and which enjoined the future sale of the land held by "LOM" are reversed.
It is urged that the opinion of the court, in connection with the number of trustees necessary to cast a vote, can be construed to mean that there must be a unanimous agreement of all the trustees of the voting trust to vote the stock they hold. If this construction can be drawn from the opinion, it is withdrawn. As noted in the opinion, the trust agreement in the plan provided the trust could act upon the affirmative vote of five of the seven trustees. This provision of the trust agreement was subsequently amended to provide an affirmative vote of seven trustees was required. This was done to accommodate this same amendment which increased the number of trustees from seven to eleven. Thus, as the trust agreement now provides, seven affirmative votes of the eleven trustees are sufficient to vote the entire stock held by the voting trust to approve the sale of land to non-Menominees.
Motion denied without costs.