136 Wis. 179 | Wis. | 1908
The attorney general asserts that his cause of action is that declared or created by sec. 3231, Stats. (1898), and placed in the state, to be exercised by the attorney gen
It is not hero denied or affirmed that the legislature, which is empowered to declare the public policy, might by appropri-
Whether it might be competent for the legislature to declare a public policy that the state, by reason of its interest in the taxability of the corporate assets or to regulate such a corporation’s charges with relation to its real investment or the like, shall have a right to institute suit to enforce the primary right of the corporation to reclaim misapplied assets or remove unsuitable or misbehaving officers, we need not now decide. It is clear upon authority of all the decided cases in New York and Wisconsin that sec. 3239 had no such purpose.
That the uncovery of assets and the reclamation thereof
The cause of action for the suspension or removal of rec: reant corporate officers is hardly less clearly primarily in the corporation. Such wrongful conduct is an injury to the corporate entity and, through it, to its stockholders, or, if insolvent, to its creditors. If the policy such officers pursue is wasteful of its property the corporation suffers the pecuniary loss. If such conduct is so illegal as to constitute an abuse or usurpation of corporate franchises outside its charter, the corporation may thereby be rendered a wrongdoer and subject to the penalties denounced by statute. It is also obvious
There remains one other general purpose of this action asserted by the state, namely, to restrain one defendant, the corporation, from exercising any rights under, and to set aside and annul, the franchise granted January 2, 1900, alleged to have been induced by bribery. Counsel concede that this is not within any purpose authorized by sec. 3237, and seem to concede that of itself it is not authorized at all by any statute, but claim that it might be accorded as ancillary and supplementary in association with the other relief sought. If we take the attorney general at his word, the subject might be easily disposed of, since we have found that the action cannot be maintained to accomplish any of the substantive forms of relief to which this is considered ancillary. However, it is set up by the affidavit with as much apparent reliance as any of the other general purposes of the action and should perhaps be considered. This court has often declared that the question of the validity of a franchise granted either by the state or through the medium of a city council to a street railway company can be questioned only in an action in the nature of quo warranto brought by the state. Ashland v. Wheeler, 88 Wis. 607, 60 N. W. 818; Milwaukee E. R. & L. Co. v. Milwaukee, 95 Wis. 39, 69 N. W. 794; Stedman v. Berlin, 97 Wis. 505, 509, 73 N. W. 57; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 517, 83 N. W. 851; Allen v. Clausen, 114 Wis. 244, 249, 90 N. W. 181; Beloit, D. L. & J. R. Co. v. Macloon, post, p. 218, 116 N. W. 897. This declaration would of course in terms
We therefore reach the conclusion that there exists no-cause of action which may be maintained by the attorney general in the name of the state of Wisconsin for any of the general purposes asserted herein. The right to call men to the witness stand and examine them as to their private affairs is a most serious invasion of their liberties, if not indeed a deprivation of property in many cases (Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 113 N. W. 456), and can be justified only on the ground that courts are entitled to the-information in aid of a proper judicial proceeding. Sec. 4096, Stats. (1898), was intended to go no further, and, where it is ajiparent that there is no such judicial proceeding, examination should not be allowed. The courts under-such circumstances, when the futility of the alleged attempt to institute a suit is made manifest, should not only prevent an examination but should dismiss the ostensible action. Madison v. M. G. & E. Co. 129 Wis. 249, 108 N. W. 65.
By ihe Court — Order of the circuit court is reversed, and cause remanded with directions to dismiss the action.