247 P. 155 | Or. | 1926
Lead Opinion
At common law a stockholder unquestionably had the right to inspect corporate books and records when he proceeded with a proper motive: Guthrie v. Harkness,
In many jurisdictions various statutes have been enacted either confirming or enlarging the common-law rule. Turning to Section 6870, Or. L., it is provided:
"Stock Book must be Kept, Subject to Inspection. Every corporation organized under this chapter shall keep a stock book, in such manner as to show intelligibly the original stockholders, their respective shares, the amount paid, and the amount due thereon, if any, and all transfers thereof, which stock book, or a certified copy thereof, as to the items in this section specified, as well as all other books of the corporation necessary for carrying on its business, shall be subject to the inspection, at all reasonable hours, of any person interested therein and applying therefor." *48
It will be observed that the right of examination is not limited to stockholders, but includes "any person interested therein and applying therefor." Nor is it provided that the purpose of the inspection be stated. The only restriction is the inspection shall be made at reasonable hours. Without doubt, a stockholder is an "interested person" within the meaning of the statute.
The effect of the statute is to give stockholders an absolute legal right to inspect the books and records of a company in which they are interested. It was enacted for their protection. Why should it not be so? They are the owners of the corporate property. The directors and other officers of the corporation are their agents and trustees. Is it not proper for the beneficiaries to inquire into the administration of the trust? Those who thus invest money may well investigate as to the manner in which it is being used, and the fact that this statutory right may result in abuse is in itself no reason for denying relief. That harm might result in subjecting corporate records to inspection by stockholders who are suspected of having sinister designs is generally more fanciful than real. When business is operated on a sound financial basis and the affairs of a company are conducted honestly and legitimately seldom does harm result by turning on the light of day.
So far as the strict legal right of inspection is concerned, it is immaterial what the motive or purpose may be. The right conferred is absolute and unconditional. Petitioner's averments concerning his purpose and motive were superfluous. As stated in 7 R.C.L. 330:
"It is not necessary for a stockholder in a corporation, who demands an inspection of its books and records, to state in his petition what his reasons *49 are for desiring it, or to show that he is actuated by proper motives and in the pursuit of justifiable ends. It is sufficient for his petition to show that he is a stockholder; that he has requested such inspection to be made at a reasonable time; and that his request has been refused."
Shea v. Sweetser,
We are not unmindful that in Davidson v. Alameda Mines Co.,
What we have heretofore said pertains to the legal right of inspection. We now pass to the question as to whether the relator is entitled to the extraordinary remedy of mandamus to enforce such statutory *50
right, regardless of his motives or purposes. If it be shown by the pleadings that he is entitled to such right of inspection, does it follow as a matter of course that a peremptory writ shall issue, or does it rest within the sound legal discretion of the court? On this question the authorities are in conflict. See cases collated in valuable note, 22 A.L.R. 43. We believe, however, in keeping with the decided weight of authority, that because relator has a strict legal right to an examination of defendant company's books and records, it does not follow that he can resort to mandamus if he has an unlawful or wrongful purpose. As stated in State ex rel. v. Funk,
"Mandamus is an extraordinary remedy. It is said to be the highest judicial writ known to our Constitution and law. It is not a writ of right. Its issuance is a matter of discretion. It issues to remedy a wrong, not to promote one, and will not be granted in aid of those who do not come into court with clean hands," citing United States v. Fisher,
If it be established by pleadings or proof that a stockholder in desiring an inspection has a sinister design or an ulterior motive which may result in injury to the corporation, we think a court, in the exercise of its discretion, should not aid him. What if a stockholder requested an inspection for the purpose of ascertaining certain trade secrets of the corporation in order to divulge the information to its competitor? Would it then be contended that a writ should issue as a matter of course? A stockholder's right, as such, should be zealously guarded, but when, under the guise of this statutory right, he acts in such manner as to be detrimental to the interests of other *51
stockholders vitally interested, the extraordinary remedy ofmandamus should be denied. Courts should never allow the statute to be used for the purpose of perpetrating a wrong or a fraud: Furst v. W.T. Raleigh Medical Co.,
Relator is presumed to have acted in good faith and it was incumbent upon defendants to allege and prove by a preponderance of the evidence that he desired an inspection for a wrongful or unlawful purpose: 4 Fletcher's Cyclopedia Corporations, p. 4103. In State ex rel. Middlesex Banking Co., supra, the court had under consideration a similar statute giving the stockholder an absolute right of inspection and it was there stated:
"But this conclusion as to the strict legal right of the relator is not of itself sufficient to entitle him to the judgment which he seeks in these mandamus proceedings. In such proceedings the writ is not issued as a matter of right, but in the exercise of a judicial discretion which takes into account other considerations than the legal right of the relator:Chesebro v. Babcock,
Kimball v. Dern,
"We are not inclined to give this language further effect than is warranted by the facts in that case. In that case the facts did not justify a denial of the right, and therefore the conclusion reached by the court was correct. But that there may be conditions and circumstances which would justify the corporation in refusing to permit an inspection is clearly recognized in Clawson v. Clayton,
Relator having sought the remedy of mandamus, it was proper for the defendants in their return to the alternative writ to allege that he desired an examination of the corporation books and records for a wrongful and unlawful purpose, specifically setting forth the facts as a basis for such conclusion. It is a defense addressed to the discretion of the court, relative to the matter of issuing the writ. Since the learned trial court saw fit so to act, we are called upon to say whether there was an abuse of its discretion in that regard. No evidence was offered. We can only look to the pleadings. Furthermore, the legal effect of the motion for judgment on the pleadings is to admit the truth of the material allegations of defendants' answer. The question therefore is: Do the facts alleged — conceding them to be true — establish that the court abused its discretion in granting relator a peremptory writ to enforce his statutory right to examine the books and records of a corporation in which he owned stock of the par value of $4,500? We answer, No. The amended answer abounds in generalities and conclusions, but does not state sufficient facts to warrant the conclusion that the purpose of relator's inspection was wrongful or unlawful. It is averred that the inspection is sought for the purpose of seeking information on which to base "unfounded and groundless actions and suits." We apprehend that a stockholder has a right to make such inspection even though it is for the purpose of bringing an action or suit against the corporation. That there is no basis for such contemplated action is merely the conclusion of defendants. It is further alleged that this inspection is sought to obtain the names of the stockholders of the corporation in pursuance of a certain scheme and conspiracy to defraud *54 the defendant company and its stockholders. We are unable, however, to see from the pleadings how this may be accomplished. The averment that certain false and fraudulent representations in the past have been made to stockholders has no materiality, in our opinion, so far as establishing that the present inspection is desired for a wrongful or unlawful purpose.
Since there was no issue of fact to be tried, the court properly allowed relator's motion for judgment on the pleadings. It follows that the writ is sustained. AFFIRMED.
McBRIDE, C.J., and BEAN and BROWN, JJ., concur.
Addendum
We appreciate that counsel may have been misled by the rule of practice announced in Davidson v. Almeda Mines Co.,
As stated in our former opinion, the granting of this writ was a matter of discretion, and it was incumbent upon appellant to show an abuse thereof. After an examination of the facts as alleged in the pleadings, we cannot say that appellant has sustained his contention in that respect.
Petition for rehearing is denied.
REHEARING DENIED.