| Ill. App. Ct. | Apr 17, 1900
delivered the opinion of the court.
The foregoing is the statement in full as made by counsel for appellants.
Did the court below err in sustaining the demurrer to the answer of appellants to the petition for mandamus ?
The case of Stone v. Kellogg, 165 Ill. 192" date_filed="1897-03-03" court="Ill." case_name="Stone v. Kellogg">165 Ill. 192, is in many respects like the case at bar. There, as here, the trial court sustained petitioner’s demurrer to defendants’ answers, and defendants having elected to stand by their answers, final judgment was entered directing that the writ of mandamus be issued.
In the Stone case defendants in their answer alleged:
“ That the real purpose of his application for books, papers, records and accounts is not, and never has been, the ascertaining of any facts which the petitioner was legitimately entitled to know, but that such purpose is, and always has been, to discover some possible ground of attack upon said company and its management, contrary to the interests of said company, and for the private advantage of the petitioner. * * * That petitioner, as a stockholder, does not seek the examination of the records, books and papers in good faith, but in furtherance of his own interests outside and in hostility to .the company. * * * Neither this suit nor the investigation which said Kellogg professes a desire to make, is for the genuine purpose of subserving the interest of the Central Union Company or its stockholders, but for the advancement of private and selfish interests of said Kellogg, and that the action of said Kellogg in that behalf is in violation of his duties as director, and in hostility to the just rights and interests of the Central Union Company.”
The allegations in the answer of defendants in the Stone case present a defense fully equal to, if not stronger, than does the answer in the case at bar. The opinion of the Supreme Court in that case must be regarded as decisive of this case. Unless it appear that the examination of books and records.demanded by the petitioner is for some improper or unlawful purpose the right to make such examination is absolute. In the Stone case our Supreme Court quotes with approval the Alabama case, which holds upon a statute similar to ours:
“ The only express limitation is that the right shall be exercised at ■ reasonable and proper times. The implied limitation is that it shall not be exercised for improper or unlawful purposes.”
And where it is claimed by the defendant in a mandamus proceeding that the petitioner seeks to examine books and records for any improper or unlawful purpose, it rests upon the defendant to plead and prove the facts upon which such claim is based. If the allegations in the answer are not sufficient to show such a purpose, a demurrer thereto must be.sustained. The allegations in the answer in the case at bar are not sufficient and the court below did not err in sustaining the demurrer thereto.
A bill in chancery was filed by the Kodger Ballast Car Company prior to the commencement of this suit for the purpose of restraining the appellee from commencing mandamus proceedings. That case was brought to this court, and the opinion is handed down herewith. (See ante, 323.)
The judgment of the Circuit Court is affirmed.