122 Cal. 272 | Cal. | 1898
In plaintiff’s original brief he says: “This is an action qui tam by a stockholder (a common informer) to recover the statutory penalty from the directors of a domestic mining corporation for failure to make or post monthly balance sheets, et cetera, required by act approved April 23, 1880.” By that statute it is declared that a stockholder may recover the sum of one thousand dollars as liquidated damages from the directors of mining corporations for failure upon their part to comply with certain of its provisions. Subsequent to the filing of plaintiff’s original brief, and while the appeal from the judg
Is the statute of penal character? This question seems to be easy of solution. The statute in this particular regard has not been directly before the court as a controverted question. At the same time, ever since it was enacted it has proven a prolific source of litigation, and has been viewed, weighed, measured, and tested by this court many times; and it may be said there is no case in our reports where the act has been before us, from the first to the last, from Loveland v. Garner, 71 Cal 541, to Miles v. Woodward, 115 Cal. 310, but what in some way and to some degree refers to this act of the legislature as penal, and the amount recovered as a penalty. In the earlier case it is said: “It will be perceived that this act is in its nature penal, and does not specifically declare that for each failure to comply with its requirements a penalty may be recovered. bTor does it declare that each refusal or neglect of that kind shall render the directors liable for a penalty.” In the later case it is said:
The power of the legislature to fix an arbitrary amount as damages for the violation of duty upon the part of the directors of a corporation is not apparent. Here the stockholder, having but a single share of stock, may bring suit and recover the same
The act of 1897 purports to amend the earlier act in two important particulars: 1. It amends section 1 by limiting the scope and effect of the act to mining corporations “whose stock is listed and offered for sale at public exchange”; 2. It amends section 3 by limiting the liability of directors of the corporations, for failure to do the things commanded by the act, to the actual damage sustained by the stockholder by reason of such failure, and costs of suit. It is now contended by plaintiff that the amendatory act is unconstitutional in this, that it does not apply to all mining corporations, and therefore is not uniform in operation. The exigencies of the present case do not require the court to pass upon this question of constitutional law. Conceding, for present purposes alone, the contention of plaintiff to be sound, still section 3, as amended, entirely changes the remedy of the stockholder, and therefore necessarily deprived this plaintiff of the remedy afforded him under the old act, and which he has sought to enforce. In answer to thi§ contention plaintiff insists that the amendment changing the remedy is dependent upon the amendment limiting the scope and effect of the act to a certain class of mining corporations, and that amendment, falling to the ground by reason of its unconstitutionality,
For the foregoing reasons the judgment is reversed, and the cause remanded.
Harrison, J., and Van Fleet, 3., concurred.
Hearing in Bank denied.