vast majority of the holders of Pere Marquette cumulative preferred stock thought so little of these liquidation rights that they were willing to surrender them in return for Chesapeake and Ohio preferred and common stock. This empirical test should not be employed, say the plaintiffs, 'because the failure of other preferred stockholders to assert their preference could have been the result of inertia, lack of knowledge of their rights, unwillingness to assume the burden of litigation and many other reasons.' The Court doubts that as a matter of law the Commission is required to assume that only plaintiffs were sufficiently energetic, well-advised and litigious to be able to exercise a proper judgment in this matter. The Commission was well within not only its power but its specific duty under the statute when it took note of the prevailing opinion of the overwhelming majority of the class of stockholders here involved.
The reasoning of the Commission attacked by the plaintiffs appears to the Court to be sound. Its findings that 'under the Court's decision we are not to consider these rights as if actual liquidation has occurred', that 'any value that can be placed on the liquidation rights of the dissenters must be only one that reflects the factual probability or improbability of an actual liquidation taking place at some particular date', that because of the unlikelihood of actual liquidation occurring 'little weight can be given to the liquidation preferences as such' and that 'these rights were given adequate consideration by the division in reaching the conclusions stated in the report of April 1, 1947, and are fully reflected in the merger terms', leave no choice to this Court but to conclude that the Commission has fully complied with the mandate of the Supreme Court.
The issue of laches remains for discussion. The Commission and the Chesapeake and Ohio in their respective answers to the complaint of the plaintiffs asserted that this action is barred by laches. The defendant Chesapeake and Ohio in its answer calls attention to the facts that:
'Assets of the Pere Marquette Railway Company have been commingled with those of The Chesapeake and Ohio Railway Company and The Chesapeake and Ohio Railway Company has assumed the indebtedness of Pere Marquette Railway Company, has paid off a considerable amount of its obligations, and has succeeded to the operation of its business, eliminating the name of Pere Marquette Railway Company from tariffs, tickets, bills of lading, folders, guides, and the like. To a large extent, the services of officers and personnel have been extended over the entire property without observance of former separate corporate ownership. Equipment formerly owned by Pere Marquette Railway Company has, to a large extent, been restenciled to indicate Chesapeake and Ohio ownership. Furthermore, as of the present time, virtually all of the pere Marquette shares of stock have been exchanged for shares of the Chesapeake and Ohio. * * * Dividends have been paid on the Chesapeake and Ohio stock for which Pere Marquette stock was exchanged, and some of this stock has, of course, been sold, or transferred to third persons.'
The Chesapeake and Ohio concludes:
'Since separation of The Chesapeake and Ohio Railway Company and Pere Marquette Railway Company properties is now impossible, any attack on the merger or on the merger terms is barred by laches'.
The plaintiffs, however, in bringing this action do not seek to have the merger set aside. They merely ask of this Court an order directing the Commission to revise the merger terms and to award them more Chesapeake and Ohio stock in exchange for their holdings of Pere Marquette than is provided for under the merger approved. It does not appear to the Court that the Chesapeake and Ohio could suffer any substantial disadvantage if it were to accede to the plaintiffs' request for a remand. The Court, in reaching its decision on the question of laches, has given weight to the fact that the Chesapeake and Ohio consummated the merger and commingled the properties at the very time the plaintiffs were pursuing their legal remedies.
The defendants also assert that the plaintiffs are guilty of an unreasonable delay in bringing this action. The complaint in this case was filed something less than two years after the Commission filed its Report on Reconsideration and second order. The Court has taken cognizance of the apparent intention of Congress, as expressed in the statutes providing for expeditious review of Interstate Commerce Commission orders, that questions of this nature be disposed of with dispatch. However, no applicable statute of limitations bars the action and the Court is of the opinion that the delay of almost two years, without more, is not unreasonable. The contention of the defendants that this equitable action is barred by the doctrine of laches is without merit.
The Court has some doubt as to the plaintiffs' right in the present action to maintain their action upon any basis except to challenge the Interstate Commerce Commission's ruling upon the liquidation rights and values. The Court observes that the Supreme Court in its opinion in this case affirmatively stated that there was no attack by the plaintiffs upon the Commission's findings that the public interest is served by the merger and unification of these properties and operations Schwabacher v. United States, 334 U.S. 182, 184, 68 S. Ct. 958, 968, 92 L. Ed. 1305. The Supreme Court reversed and remanded the case in order that the Commission might affirmatively consider the liquidation rights 'to the extent that they may affect intrinsic or market values.' Never the less, this Court has in the interest of expeditious disposition of all possible questions, passed upon the several additional points raised by the plaintiffs in their pleadings.
The Report on Reconsideration and second order of the Commission appearing to the Court to be in accord with the mandate of the Supreme Court, the motion of the plaintiffs for summary judgment is denied and the motions of the defendants for summary judgment are granted.