12 Del. 338 | Del. | 1886
Lead Opinion
delivered the opinion of the court:
The case comes before us upon a writ of error to a judgment of the Superior Court of. this State in and for New Castle County, in favor of David M. Richardson against William H. Swift, president of the Diamond Match Company. Eichardson was the holder and owner of shares of stock in the Diamond Match Company, a corporation under the laws of Connecticut. Swift was a director and president of said company, and resides in this State.
As a stockholder in said company, Richardson applied to Swift for permission to inspect and take copies of certain papers and documents in his possession, for a purpose which he alleged was necessary and proper, and material to his interest as a stockholder in said company. Inspection was not refused, but permission to make copies or memoranda of said papers and documents was refused. Thereupon Richardson presented his petition to the court below, praying said court to award a writ of mandamus against Swift, commanding him to suffer and permit said Richardson to inspect and make copies of the instruments, books, papers, and writings in his custody or control belonging to the said Diamond Match company, to wit:
1. All contracts and agreements for the purchase, by or on
2. All instruments in writing conveying or assigning to said company, or other persons in its behalf, property, rights, or franchises relating to the manufacture of matches prior to said last mentioned day.
3. All contracts, agreements, or conveyances relating to said purchase of property by or on behalf of said company, other than for materials or supplies in the usual course of its business prior to said last mentioned day.
4. All bonds, contracts and agreements, not to engage in the match business, made to or with said company prior to said last mentioned day.
5. All books, papers and writings of said company, showing the net earnings of the company for and during the. years 1881 and 1882.
To Richardson’s petition Swift filed an answer, in which he . does not deny that the papers and documents mentioned in Richardson’s petition, and sworn to be in his possession, were in his possession at the time of the service of the writ or were then in his possession, but states:
“ That the law of the said State of Connecticut, under which said corporation was created and exists, provides that ‘ The statements and books of every such corporation shall be kept in the town where it is located, and shall, at all reasonable times be open to the inspection of its stockholders; and as often as once in each year a true statement of the accounts shall be made and exhibited to the stockholders.’ And the said law further provides 1 That the president and treasurer of every joint stock corporation shall annually, on or before the 15th day of February or August, lodge with the town clerk of the town in which said corporation is located, a certificate, signed and sworn to by him, showing the condition of its affairs, as nearly-as the same can be ascertained, on the first day of December or January, or on the first day of June or July, next preceding the time of making such certificate, in the following particulars, to wit: 1. The amount of the capital stock actually paid in; 2, the cash value of its real estate; 3, the Cash value of its personal estate, exclusive of patents; 4, the amount of
The defendant, Swift, also in his answer says:
“ That, in conformity to the provisions of the said law, as aforesaid, the statement and books of the said corporation have been and are now kept in the town of New Haven, where it is located as aforesaid, and have been at all times and are now open to the inspection of any of the stockholders; and that, in the month of February in each year since the organization of said* corporation, the certificates required by said law, as aforesaid, signed and sworn to by the president and treasurer of said corporation, have been duly lodged with the town clerk of said town of New Haven, and duplicates thereof, made and sworn to as required by said law, have been lodged by them, as aforesaid, with the secretary of the said State of Connecticut; and that in all respects the requirements of the said law, as set forth in the relator’s exhibit B? have been fully and faithfully complied with by the said corporation and its officers, and that the said statements and books were not, at the time of the filing of said petition, or at any time since, in the custody or possession of the said "William H. Swift.”
Now, it will be observed that the relator’s exhibit B, in respect to which Swift in his answer says that the requirements of the law have been fully and faithfully complied with by the said corporation and its officers, relates only to: 1, the amount of the capital stock actually paid in; 2, the cash value of its real estate; 3, the cash value of its personal property, exclusive of patents; 4, the amount of its debts; 5, the amount of its credits; 6, the name, residence, and number of shares of such stockholders. And it was in reference to these that Swift says that “ The'said statements and books were not, at the time of the filing of the said petition, or at any time since, in the custody or possession of the said William H. Swift.”
He nowhere makes a similar declaration in respect to the documents and papers, an inspection of which, and the privilege of making copies of which, was demanded of him by the relator, and the privilege of taking copies of which was refused by him. This will appear manifest from the answer of Swift to the petition filed in the court below. He therein says that "This respondent is with
He further says that “ To allow copies of all the instruments, bonds, contracts, agreements, books, papers or writings belonging to the said corporation, and mentioned in said relator’s petition, to be made by the relator for use and publication in his said suit, would greatly impede, hinder and obstruct the conduct of the business of the said corporation, and injure and greatly damage the interests of the same, and of its other stockholders.”
From this, also, it appears that the papers and documents mentioned in the relator’s petition as in the possession of the said Swift, and the privilege of taking copies of which was demanded by him, and refused by the said Swift at the City of Wilmington, where they were in said Swift’s, possession, were not the same as those required to be kept in New Haven by the Act of the State of Connecticut under which the Diamond Match Company was organized, and were not the same statements and books as those mentioned in the relator’s exhibit B, which Swift in his answer says were not, at the time of the filing of the "said petition, or at any time since, in the custody or possession of the said William H. Swift.
When Swift says that “ The said relator has been furnished with statements showing fully and accurately what were the net earnings of the said corporation during the years 1881 and 1882, and has been permitted by the said corporation full and free access to all books, accounts, bonds and papers mentioned in his petition, and to inspect the same personally or by his attorney,” he nowhere denies that demand was made upon him by the relator for permission to make copies of the books, accounts, bonds and papers, and that such demand was refused by him.
The right to make copies, and to make abstracts and memoranda, of documents, books and papers, by a stockholder in an incorporated company, is as full and complete as the right of inspec
There was and is no law of the State of Connecticut requiring that the president of said corporation should be a resident of the State of Connecticut, There was and is no law of said State requiring that the papers and documents mentioned in the relator’s petition should be kept in New Haven, or in the State of Connecticut. They were, in fact, kept in the City of Wilmington, in the State of Delaware, and in the possession of William H. Swift, at the time of the demand and refusal of the privilege of copying the same, and are there yet in the same possession, so far as we know from anything in this case.
The.grounds upon which the awarding of the mandamus was resisted in the court below, and upon which the reversal of the judgment below is asked in this court are sufficiently stated in the answer of Swift, and are as follows:
“ And the said William H. Swift further says that the said David M. Richardson and the said Christian H. Buhl and Russell A. Alger are all residents of the State o'f Michigan, and the controversy and suit pending between them, as appears from the said relator’s petition and exhibits filed, arises upon a contract entered into between them in the said State of Michigan, and which was made with respect to the laws of the said State; and the said controversy and suit do not arise upon any contract or engagement entered into in the State of Delaware, or with respect to the laws thereof; that the said controversy or suit is not with or against the said corporation, or for the purpose of establishing or maintaining any right of the said relator as a member of the said corporation, or compelling the exercise or performance, by any officer thereof, of any corporate function or duty; and that the suit or controversy does not arise out of or upon any contract or engagement by or on behalf of said corporation, or out of or by reason of any duty imposed by the law upon said corporation, and that the said corporation is not a party to said suit, or interested therein, and can in no
A mandamus may be defined to be a command issuing from the Superior Court, directed to some person, corporation or inferior court, within the jurisdiction of the superior court, requiring them to do some particular thing therein specified which by law they are bound to do, and which a superior court has previously determined or at least supposes to be consonant to right and justicé.
It is unnecessary for the purposes of this case to trace the origin and history of the writ of mandamus. While it is true that in England it was originally what is called a “ prerogative writ,” and is there generally treated as such, in this State, and in this country, it is simply a writ, divested of all its prerogative features, for the enforcement of a remedy by a person having a legal right against another person withholding that right.
Prerogative writs, as such, may be said to have no existence in this State, or in this country. The writ of mandamus, and the right to it in all cases to which it is applicable, is as clearly recognized in our jurisprudence as any other writ which may be issued out of the courts of law to which a party may be entitled. A clear recognition of this as settled law will go far to devest the' character of the writ of much seeming mystery or obscurity of meaning with which it has been customary to surround it, and will greatly simplify the issue involved in this cause, which is nothing more nor less in its nature or character than a suit at law between one person as plaintiff and another as defendant.
Thus considered, the only questions for us to decide in this
The writ of mandamus only issues where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. The right which it is sought to protect must, therefore, be clearly established; and the writ is never granted in doubtful cases. The exercise of the jurisdiction to grant it rests, to a considerable extent, in the sound discretion of the court, subject always to the well settled principles which have been established by the courts.
The test to be applied in determining the right to relief by mandamus is to inquire whether the party aggrieved has a clear legal right, and whether he has any other adequate remedy, since the writ only belongs to those who have legal rights to enforce, and find themselves without- an appropriate legal remedy. “ In such case,” says High, “ the right to the extraordinary aid of a mandamus may be regarded, to that extent, as ex debito justitiæ." The relator must show, not only that he has a clear legal right to have the particular thing in question done, but also the right to have it done by the person against whom the writ is sought.
A corporator may have a mandamus to compel the eustos of corporate documents to allow him an inspection, and copies of them, at proper times and on proper occasions; he showing clearly
Indeed, upon this point the authorities are uniform, and I shall not burden this opinion with the citation and examination of the numerous authorities which have established it as settled law.
Swift never in his answer objects that the corporation, the Diamond Match Company, is not a party to the proceeding. He nowhere denies that he is the custos of the papers, documents, etc., an inspection and copies of which have been demanded of him and beep refused by him. If he was such custos, it was not necessary, in my opinion, that the corporation should have been a party to the proceedings. Had the corporation been created by the laws of this State, it would not have been a necessary party to these proceedings. “ Indeed,” says Angell & Ames on Corporations, 775, “ it (mandamus) lies to any person who happens to have the books of the' corporation in his possession, and refuses to deliver them up.
And High Extr. Rem. (section 31), says, which is more pertinent to the point under consideration:
“ As regards the person to whom the writ should be directed, when an inspection of corporate records is sought, the proper practice is to address it to the one actually having the custody of the books and records, even though he is merely a ministerial officer acting under the direction of others, as in the case of a bank cashier acting under a board of directors. In such case the rule applies that the writ should run to the particular person who is to perform the act required, and the cashier having charge of the books, his refusal to allow their inspection is his individual act, and the writ is therefore properly addressed to him, but there is no impropriety in such case, in directing the writ also to the board of directors.”
If the writ should be addressed to the one actually having the books and records, even though he is merely a ministerial officer acting under the direction of others, as a cashier of a bank acting under the board of directors (People v. Throop, 12 Wend., 183), it would seem that the corporation was not only not a necessary party, but should not be a party according to such practice, although the
Taking this, therefore, to be the proper practice in cases where the cusios is in possession of the documents and papers, an inspection and copies of which are demanded, and. in cases where the corporation is a domestic one, can there be any reason why the rule should be different where the corporation is a foreign one; the cusios being domiciled in this State, and having possession of the books, papers, and documents by authority of the foreign corporation ? I can see none. Swift in his answer says that “ The said Diamond Match Company is a corporation.created by and existing under the laws of the State of Connecticut, and is not a corporation created by or existing under any law of the State of Delaware > and that- the same is located in the town of New Haven, in the State of Connecticut, though it does hold real and personal property in the State of Delaware, and transacts business incidental to its business within the State of Connecticut.”
Now, if it holds real and personal property in the State of Delaware, and transacts business incidental to its business within the State of Connecticut, it holds such property and transacts such business by the comity of the State. Its president lives here, and is the custos in fact ot the documents and papers, an inspection of which, and the privilege of taking copies of which, the relator seeks. The corporation itself does business here, not as a corporation created by the State of Delaware, but as a foreign corporation created by the law of Connecticut. ■
What results from this ? That .acting here as a foreign corporation, and holding real and personal • property, and doing business as such within this State, it submits or subjects itself to the law of the State, in the same manner and to the same extent, in respect to such property and business, as it would be bound to do were it a corporation created by the State of Delaware; and it owes
Was William H. Swift the legal eustos as well as the cusios in fact of the documents and papers, an inspection and copies of which the relator seeks ? No Act of the Legislature of Connecticut, and no by-law or rule of the corporation, has been produced showing that provision was therein made for the custody of said books and papers. Nothing has been shown us which requires said documents and papers to be kept within the State of Connecticut. They have not been shown to have been in the possession of any other person than William H. Swift. William H. Swift has for many years resided, and still resides, in the City of Wilmington, in the State of Delaware. He has, and ever has had, the actual possession and control of the same, as far as their history has been made known to us. His possession of them is not to be presumed unlawful, but is, I think, presumed to be lawful. Service of the rule was made upon him, and an answer to it was made by him. He signs himself to said answer as William H. Swift, president of the Diamond Match Company.
Now, suppose Mr. Richardson, the relator, instead of being a citizen and an inhabitant of the State of Michigan, was a citizen and inhabitant of the State of Delaware, and a stockholder in the Diamond Match Company; could anyone reasonably doubt that the courts of Delaware would be competent to afford him the relief he asks by granting him the State’s writ of mandamus f Does the fact that he is a citizen and inhabitant of the State of Michigan affect his rights in this respect? I think not. Has he not the same rights, as a stockholder in the company to the inspection and copies of the books, papers and documents in the possession of Swift, who must be presumed to be the agent of the directors of the company in respect to such books, papers and documents, and the custody thereof, and who is in fact the president of the company as he would have were he a citizen and an inhabitant of the State of Delaware? Has he not the same rights in respect thereto, in the courts of Delaware, as the .citizen and inhabitant of Delaware would have?
Section 2, Art. 4, of the Constitution provides that “ The citizens of each State shall be entitled to all privileges and immuni
It does not matter, for the purpose of this case, where the said David M. Richardson and Christian H. Buhl and Russell A. Alger reside, nor how the controversy and suit pending between them arises. The question is: Has the relator shown a clear right to inspect and take copies of the books, papers and documents mentioned in his petition ? It is not material who are the parties to the suit in Michigan mentioned in the respondent’s answer, nor out of what it arises. The question is: What are the rights of Richardson, the relator, as against Swift, the respondent, in respect to the papers and documents of which Swift is the legal cusios f It is not in the power of the corporation to prohibit its president and agent from obeying the mandate of the court below. Courts of law are not prohibited from exercising their rightful jurisdiction by such feeble authority, nor will they heed such impotent obstructions. If they have jurisdiction, in all proper cases they will proceed to judgment, and execute their judgments in the manner the law provides.
But the respondent says that “ To allow copies of all the instruments, bonds, contracts, agreements, books, papers or writings belonging to said corporation, and mentioned in said relator’s petition, to be made by the relator for use and publication in his said suit, would greatly impede, hinder, and obstruct the conduct of the business of the said corporation, and injure and greatly damage the interests of the same, and of its other stockholders.”
Why awarding the writ of mandamus in this particular case should be attended by such consequences to the corporation is not readily to be perceived. If its transactions have been fair and just in all respects to the members of the corporation and others, it is presumed that such transactions will bear the light of inspection and criticism without impeding, hindering or obstructing the conduct of the business of the corporation, or injuring it in any respect whatever; but the right of Richardson to the relief he seeks depends, not upon the consequences that may result to the corporation, but upon his showing to the satisfaction of the .court
It does not follow that although the court below had the right, and it was its duty, to award the writ of mandamus against Swift under the circumstances of this case, the power of the Superior Court in respect to a foreign corporation is unlimited, and may be exercised in respect to all matters in which foreign corporations are concerned. The Superior Court, and even the State of Delaware itself, cannot forfeit' the charter of a foreign corporation. It cannot compel the election of a stockholder, nor prevent the removal of one. It cannot, in general, intermeddle with or control the internal concerns of a foreign corporation. Its jurisdiction in respect to such corporations is extremely limited; but it has power to see that the officers, agents, and servants of such corporations, transacting business in this State, by the comity of the State, shall yield obedience to the laws of the State.
I have not made reference to the fact that there is an Act of the Assembly of this State, conferring the right on the Diamond Match Company, a corporation of the State of Connecticut, to hold real and personal property, and to transact its business, within this State; for, although the Act is mentioned in the brief of the respondent’s attorneys, and referred to in the argument, it is nowhere stated in the record sent up to us from the court below. The ownership of the property, and the transaction of the business of a foreign corporation, is admitted by the respondent in his answer. The obligations arising from state comity are the same as those that would arise from such an Act of the General Assembly, and would be so regarded by the courts of law.
For the reasons which I have stated I think that the judgment of the court below should be affirmed, with costs.
Houston, J., concurred.
Dissenting Opinion
dissenting:
After mature consideration of this case, and of the principles which in my judgment should control its determination, I feel constrained to dissent from the judgment pronounced by the majority of this court.
Its circumstances are most novel: The relator below is a citizen of Michigan and a stockholder in the Diamond Match Company, which has been incorporated exclusively under the laws of Connecticut, and holds property and transacts a part of its business in Delaware.
Being involved in a suit in Michigan, solely against citizens of Michigan, relating wholly to his stock and the net earnings thereof in said corporation, pledged by him to the defendants in said suit as security for a loan by them to him, the said relator has applied to the Superior Court in Delaware, as such stockholder, for a mandamus against the respondent Win. H. Swift, as president of said corporation, who resides in this State and has in his custody here certain books, agreements and other instruments belonging to said corporation, to compel said Swift, as such president, to allow the relator to make inspection and copies in Delaware of said books, etc., for purposes of evidence in his said suit, and which he alleges are necessary to enable him to maintain it.
The adjudification of this case does not require either the consideration or decision, of all the various and interesting questions raised at the argument. I shall, accordingly, confine myself to the principal inquiry upon which its decision depends, and refrain from determining whether or not a stockholder in a private corporation is entitled to have copies of its corporate books, contracts, etc., for use in a suit to which the corporation is not a party and in the result of which it is not interested; or whether or not, in case such right exists, the corporation should be made a party to mandamus proceedings for its enforcement; or whether or not, in the present instance, the said respondent Swift was authorized under any law of Connecticut to have the custody and control, in Delaware, for any purpose, of the books, agreements, etc., specified in the petition of the relator below, and particularly for the purpose of allowing the relator to make inspection and copies thereof in this State for the object mentioned in his said petition.
It may be well to observe, however, that it is a well settled
Bank of Augusta v. Earle, 13 Peters, 587; Railroad v. Koontz, 104 U. S., 11, 12; Field on Private Corp., Sec. 243, 261.
In this connection the serious question arises: “ Has the relator shown affirmatively and beyond doubt (as the law governing the allowance of mandamus requires him to do) that any law of Connecticut either "expressly or impliedly authorizes Swift, even to have in Delaware, except possibly for his own convenience as president, the said books, etc., specified by the relator, much less to allow a stockholder to make inspection and copies of them there ?” And if not affirmatively shown, can this be presumed in view of the settled principle regarding acts done outside of the State of domicile, and m view of the refusal of the board of directors to permit Swift to allow such copies to be made by the relator in Delaware ?
The relator, as the record discloses, nowhere avers or shows that Swift was expressly so authorized; not does it appear expressly in any way.
Is there anything, then, in any law of Connecticut which implies any authority or imports any design to have the said books, agreements, etc., of the said corporation taken or used outside of Connecticut for the purpose of allowing a stockholder inspection or copies of them in Delaware or elsewhere ? Do not the express provisions and the general purport and policy of the Connecticut incorporation law more reasonably imply the contrary ? Especially those provisions which require that the corporation shall be located in a particular town in Connecticut, where its books and annual statements shall be kept, and shall at all reasonable times be open for the inspection of any of its stockholders; that an assistant treasurer shall be appointed when the treasurer shall reside out of Connecticut, who shall reside within the State, and upon whom notices in all legal proceedings may be served, and who, instead of the treasurer, may sign the annual statements showing the condition of the corporate affairs ?
And is Swift’s mere possession of the said books, agreements, etc., in Delaware alone sufficient, in view of the foregoing, to raise the legal presumption that he was lawfully authorized to have them here for such inspection and copies ? Is it not more reasonable to infer that he had them here exclusively for his own convenient examination and use as president of said corporation ?
And is it not to be presumed, since the record shows nothing to the contrary, that, being a corporate officer, he would do his duty as such in all respects, and would, therefore, return them to Connecticut whenever required by said corporation, or by the courts of that State, to do so for any lawful purpose; and that, consequently, the relator might have had the inspection and copies sought by him if he had made application therefor to the said corporation or the proper court, in Connecticut, instead of applying therefor in Delaware ?
In the light of the foregoing considerations, are not the probabilities against, rather than in favor of the relator’s alleged right to have inspection and copies outside of that State ? At the best, is not this right doubtful ? If so, the relator is not entitled to relief by mandamus, for the writ is never granted in doubtful cases and the onus is upon him clearly to establish his right. High Ex. Rem., Sec. 9.
But I pass to the graver question—to that which is the paramount inquiry in this case, and the proper determination of which will be sufficient decisively to dispose of it. Has the Superior Court in this State, under existing constitutional and legislative
A careful investigation of. the theory upon which corporations both public and private are created, and also of the theory upon which mandamus has hitherto been awarded and employed, especially in this State, must, as I conceive, furnish a negative answer to this inquiry.
The power to confer corporate franchises and privileges always has been considered as vested in the sovereign authority of the State.
The creation of a corporation, whether public or private, is an act of sovereignty whereby a portion of the sovereign powers is conferred upon the corporators. In this country corporate rights and franchises can only be conferred by legislative enactment. Field on Private Corp., Secs. 11, 15 ; Bank of Augusta v. Earle, 13 Peters 595, 587.
Corporations are created, and their rights, powers and privileges are granted for the public good. Dartmouth College v. Woodward, 4 Wheaton, 637.
In the case of private incorporations, which are grants of exclusive franchises and special privileges to particular individuals, the theory that such corporations are created for some supposed public good has furnished the legitimate ground in this country, for such an exercise of legislative power. Cooley Const. Lim. p., 394. In Field on Private Corp., Sec. 17, it is said: “The legislatures of the several states have, by their respective constitutions, the power to make laws and legislate upon all subjects pertaining to the public benefit, and this, in the absence of express provisions on the subject, carries with it by implication, the right to use all the means requisite to the accomplishment of the objects of legislation consistent with the purposes for which the government is instituted and with the state and national constitutions. The public benefit to be derived is the consideration on the part of the State for the creation of private corporations. The motive of the sovereign creating it is supposed to be some good the public will derive from it. This advantage has been considered sufficient to bring their •creation by the legislatures within the scope of the general powers
In consideration, therefore, of the grant of special privileges and franchises the corporation accepting it enters into an implied obligation to the sovereign grantor to exercise all the functions and perform all the duties necessary to fulfill the ends of its creation and promote the supposed public good; and this implied contract made with the sovereign power enures to the benefit of every individual interested in its performance. Dartmouth College v. Woodward, 4 Wheat., 637, 658. Cooley Const. Lim., p. 248.
From this obligation to the state creating the corporation, results the duty to that sovereignty (among other corporate duties) to allow a stockholder the right, when such right clearly exists, to make an inspection of corporate books, papers, etc.
For a failure of the corporation duly to exercise its franchises and functions, and fulfill its obligations to the state creating it, the law has provided two extraordinary remedies, viz : Mandamus to enforce specific performance, and quo warranto to compel a forfeiture of the franchises and a dissolution of the corporation for non-performance of corporate duty.
Mandamus is the proceeding employed in the exercise of the sovereign supervisory power over the agencies created and empowered by sovereignty for the promotion of the public welfare, to compel these to fulfill the ends of their creation.
The people of the sovereignty creating and empowering these agencies, are necessarily interested in seeing that they fulfill the ends of their creation, and do not abuse the powers and franchises with which they have been entrusted, and hence this proceeding should be always in the name of that particular people or State. In England this supervisory power resides in the Court of King’s Bench, and in this State in the Superior Court exclusively.
“In England,” says Chief Justice Taney, in 1838, speaking prior to the common law procedure act of 1854, in Kendall v. United States, 12 Peters, 629, “ the writ of mandamus can be issued by the Court of King’s Bench only. It can not be issued by the Court of Common Pleas, or any court known to the English law, except the Court of King’s Bench. Its peculiar powers are clearly stated in 3 Black. Com. 42, in the following words: “ The juris
And again in this same case of Kendall v. United States, 12 Peters, 621, Mr. Justice Thompson, in delivering the opinion of the Court, said : “ The theory of the British- Government and of the Common Law is, that the writ of mandamus is a prerogative writ, and is sometimes called one of the flowers of the Crown, and is therefore confided only to the King’s Bench, where the" King at one period of the judicial history of that country, is said to have sat in person, and is still presumed to sit. And the power to issue this writ is given to the King’s Bench only, as having the general supervisory power over all inferior jurisdictions and officers, and is co-extensive with judicial-sovereignty. And the same theory prevails in our State governments, where the Common Law is adopted, and-governs in the administration of justice; and the power of issuing the writ is generally confided to the highest Court of original jurisdiction.”
It is true that Judge Taney subsequently in 1860, in Kentucky v. Dennison, 24 How., 97, said: “ The right to the writ of man-dam is, and the power to issue it, has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.” This expression was used in a case before the United States Supreme Court and was correct so far as respects the use of the writ in the Federal Courts. In Commissioners of Knox Co. v. Aspinwall et al., 24 How., 384, decided subsequently to Kentucky v. Dennison, the Court say: “ By the common law, the writ of mandamus is granted by the King’s Bench, in virtue of its prerogative and supervisory power. The courts of the United States cannot issue this writ by virtue of any supervisory power at common law,” &c. And in Kendall v. United States, 12 Peters, 621, the Court say: “To consider the writ |of mandamus in use here, as it is in England, the issuing of it should be confined to this Court as "it is there to the King’s Bench. But this power is not exercised here as in England by the King’s Bench, as having a general supervisory power over inferior courts,” &c. The said language of Judge Taney, moreover, was
It follows, therefore, that, in some of the earlier settled States of the Union, where the common law is adopted, and where the power to issue the writ is given to one Court only, as having the general supervisory power over all inferior jurisdictions and officers, there mandamus has been used as a prerogative writ, in the supervisory sense, as fully and amply as in the King’s Bench in England prior to the modern legislation modifying its use there. That it was so in Maryland has already appeared from Judge Taney’s opinion in 12 Peters, 631. It has also been so used in New York and Illinois. High Ex. Rem., Sec. 4, note 1. The same view has prevailed in this State from our earliest colonial period. The writ of mandamus never has been expressly mentioned in any of the constitutions or. statute j of this State. Jurisdiction by mandamus has been derived from and as incident to the general supervisory powers originally conferred by statute upon the Supreme Court of this State, and afterwards upon its successor, the present Superior Court, pursuant to the provisions of our existing constitution. These supervisory powers have always been confined exclusively to one Court in this State. They appear to have been
That the jurisdiction of our Superior Court by mandamus is the same precisely as that formerly exercised by the Court of King’s Bench in England; that it is an exercise of its prerogative and supervisory power, and that this power is derived from the aforesaid provision of section 2, chapter 92, is shown by the uniform current of authoritative adjudication in this State. It has the direct support of Chief Justice Bayard, delivering the opinion of this court in 1840, in State v. Wilmington City Council, 3 Harr., 299, and also of Judge Harrington in the same case, 307. Also of Chief Justice Gilpin in 1864, in Cannon et al. v. Janvier et al., 3 Houst., 31. Also of Chief Justice Comegys in 1880, in State ex rel. Ferris v. Knight et al. (not yet reported.) These were cases adjudicated in the Superiour Court. But this view has also the sanction of this Court of last resort in this State. For, in Knight et al. v. State ex rel. Ferris, before this Court on error in 1882, Chancellor Saulsbury, delivering the opinion of the Court (not yet reported) said: “ The office of the writ of mandamus is to compel a Corporation, an inferior court, or a public officer to perform some particular duty incumbent upon them which is imperative in its nature, and to the performance of which the relator has a clear le¿al right.” “ The remedy is extraordinary, and if the right is doubtful, or the duty diseretionory, or if there be any ordinary and adjequate specific legal remedy, this writ will not in general be allowed.” “ In England it is considered to be a prerogative writ, and was so called because the power to issue it was vested in the judges of the King’s Bench, the Court in which the sovereign is supposed to be personally present. It is a remedial writ, the appropriate functions of which are the enforeement of duties by officers and others, who either neglect or refuse to perform their duty, an d for the enforcement of which duties there is no other specific legal remedy.” * * * “ The Superior Court exercises jurisdiction in respect to all matters purely legal, whether of
The effect of this uniform current of adjudication, by our most eminent judges in our highest Courts here, is conclusively to establish that, in this State, until it shall be modified, as in England, by legislative authority, mandamus is a prerogative writ in the supervisory, though not the regal sense—a writ of sovereignty, not a royalty; that it is issued by our Superior Court, not of course, but only in the exercise of a sound judicial discretion, and employed precisely as in the Court of King’s Bench in England prior to the statutory modifications there, and in the exercise of an “ authority designed to be supervisory; ” and that it properly can be employed only against inferior legal tribunals, corporations and “ persons bound to the proper discharge of authority with which they have been clothed by law for the public benefit ”—that is, persons standing not in a private relation, but in some relation to the public, having a public trust and duty to fulfil and therefore having, in that sense, the status of a public officer. This being so, mandamus can not, appropriately, or lawfully be granted by our Superior Court against any such tribunal, corporation or person, whose powers and duties have not been conferred and imposed by some exercise of the sovereign power of this State.
With respect to its employment against private corporations, in particular, this doctrine is peculiarly applicable. As heretofore stated, a private corporation in this country is created exclusively by statute. Its creation is an act of sovereignty conferring upon specified individuals a portion of the sovereign power for some supposed public good, and which powers they enter into an implied obligation to the sovereign grantor to exercise preliminary in the interest of the people of that particular sovereignty or State, in consideration of its corporate grant. In this and other States, this supposed promotion of the public welfare, in theory at least, is the only legitimate ground for this exercise of legislative authority and
The approved definitions of the nature and use of mandamus, as formulated by Courts and text writers of high authority, must be understood as applicable only when the writ may be invoked against a private corporation or its officers within the State alone whose legislature has incorporated it, or imposed the duty sought to| be enforced. For these definitions do not properly apply when the writ is sought elsewhere, and the assumption that they do must necessarily lead to erroneous conclusions.
! The precise question now under consideration does not seem ever to have been adjudicated in the Courts of England. Certainly no decisions- relating to it were present at the argument, and it was said that none could be found in the English reports. Considering how numerous are -the corporations transacting business in England
In this country there is almost as significant an absence of such applications, excepting where such use of the writ has been authorized by statute. In but two of the thirty-eight States of the Union, has the question been the subject of judicial consideration, and, in both, the right to the writ at common law and in the absence of a statute authorizing such use, against a foreign corporation, was denied. The first instance was in the case of People ex rel. Jenkins v. The Parker Vein Coal Co., 10 Howard, N. Y., Practice Rep., 543, where the relator asked for a mandamus to compel the defendants to open the transfer books of the corporation to the relator and to all such stockholders as may desire to transfer stock.In his opinion in that case Mitchell, J., remarked: “ The mandamus partakes of the character of a public writ, one in which the people are in some way interested ; and it has never been allowed except for the purpose of controlling those owe a public duty to the State in which it issues. This company is incorporated in Maryland, and although it has an office here and may be used here on its contracts and obligations to individuals or others, yet it does not owe allegiance or public duties to this State, or according to the laws of this State, but to the State of Maryland and according to the laws of that State. If it violates its character the remedy should be in Maryland and not here.” This New York case is entitled to the greater consideration here because mandamus is regarded in that State, as has been shown, as a prerogative writ in the supervisory sense; which view is in harmony with the King’s Bench theory and practice respecting the writ that" has also prevailed in this State.
But the case of Curtis v. McCullough, 3 Nevada, 202, is a case of especial importance to this inquiry, because in it the question of the common law power of the Courts of Nevada to grant mandamus against the ex-superintendent of a California Mining Corporation, resident in Nevada, to compel him to deliver, to his successor, the mine, books, &c., of the corporation, in his possession in Nevada, came directly before the court for its adjudication. The court held that, as the corporation was created, and its duties im
Again, if private corporations can only be created by the legislative power in a State, for a public purpose in theory, are they not therefore, in a legal sense, the agents or instrumentalities of that sovereignty, exercising a portion of the sovereign powers for the benefit of the people of that State, and therefore a part of its ¡internal administration and domestic concerns? If so, then the right asserted by the relator in this case, to have a mandamus here to procure the books, contracts, etc., of a foreign corporation for the purpose of making inspection and copies thereof, if allowed, might greatly hinder and obstruct the conduct of the business of the said corporation and damage its interests, as the respondent in ¡his answer alleges, and without denial by the relator, that it would. In that case the allowance of the mandamus here would be art interference by this State with the internal administration and domestic institutions and concerns of another State; for if it be conceded that, by such a proceeding, the books, contracts, etc., of a ¡foreign corporation can be held for an instant, then they can be held indefinitely and so prevent the due performance of its functions and duties and the fulfilment of the public objects for which it was created. In the absence of a statute of Delaware authorizing such a use of mandamus by our Court, as a condition of the
And here the pertinent inquiry arises: Does not the true construction of said Section 2 of Chapter 92 of our Code, from which the supervisory jurisdiction of our Superior Court by mandamus is derived, negative any claim of power to exercise it against a corporation, or its officers or agents, unless such corporation has been incorporated, or the duty sought to be enforced has been imposed by some statute of this State ? So far as this supervisory jurisdiction relates to magistrates and other officers it is limited and confined by our statute to such as are “ within this State,” to quote the precise words of said Section 2, that is, to such officers only as are created, or whose duties are imposed by this State alone. And so far as such jurisdiction over corporations is derived from said Section 2, it must likewise, in principle, and, presumably, in the intent and meaning of those who enacted it, be confined to such corporations as are created, or whose duties are imposed by this State exclusively. For the law is definitely settled that a corporation can have no legal existence outside the territorial limits of the sovereignty which created it. Nor can its officers be recognized in their official character out of the jurisdiction of the State which created the corporation, but only as are the agents of a natural person residing in another State. Custis v. McCullough, 3 Nevada, 202; Bank of Augusta v. Earle, 13 Peters, 519, 588; Paul v.
It is equally well settled that a foreign corporation does not become a corporation of another State than that of its creation and domicile, by holding real or personal property or transacting a portion of its business therein. Railroad v. Koontz, 104 United States, 10, 13; B. & O. R. R. Co. v. Carey, 28 Ohio State, 208: Blackstone Manufacturing Company v. Inhabitants of Blackstone, 13 Gray, 488.
It is not sufficient for the purposes of his case, for the relator to urge that because a foreign corporation, by the comity of this State, holds property and transacts business by its agent here, therefore it is subject to our writ of mandamus. It may be true that such a corporation may thereby be served with our process, or attached, and its property real and personal within our State, made liable to execution in actions upon its contracts made in or out of Delaware. But to contend that, therefore, it, or its agents, or its property are subject to our writ of mandamus for non-performance of a corporate ' duty not imposed by our laws, is to lose sight of the distinction between an action'on contract and a mandamus proceeding. The former is employed to ¡recover satisfaction for the non-performance of an obligation touching a private interest, and due primarily to the person interested, while mandamus is a writ of sovereignty to compel the specific performance of an obligation touching a supposed public interest and due primarily to the State, and therefore employed exclusively by that sovereignty to which alone the obligation is due, whether invoked by the proper law officer of the State in the public behalf, or by some person having a private interest in its performance. When it is employed to enforce a corporate duty arising out of such an obligation to sovereignty, (and the duty to allow inspection and copies of corporate books, papers, etc., when it exists, is such a corporate duty), it must, therefore, be issued exclusively by the State creating the corporation or imposing the corporate duty. Without a corporation there can be no corporate duty. In Delaware a corporation can be created only by authority of a statute enacted in the prescribed constitutional manner. Here, it cannot be created by comity. Otherwise a foreign corporation, holding property, and
A corporate duty, as such, does not exist, or arise “ by common law ” in this State, or elsewhere in this county, but only by statute, nor does the right to inspect, or have copies of corporate books} papers, &c., or any other rights springing from corporate duty. Since all the powers and duties of a private corporation created under and by virtue of a legislative enactment, (as the said Diamond Match Company has been, in Connecticut exclusively,) are derived from the statutory grant of such powers, the duty to allow such inspection and copies, and the corresponding right to have it performed, when these exist and are not expressly mentioned in the statutory grant, are, according to common law rules of inter
Accordingly it is evident that neither a foreign corporation, as a corporation, nor its officers, as corporate officers, can have existence in Delaware by comity, or otherwise than by appropriate legislative enactment here; and further that no corporate duty, whether to allow a right of inspection, etc., to a stockholder, or 01 ¡her right, can be due from a foreign private corporation, or its officers or agents, as a corporate duty by the common law of Delaware. The present proceeding, as the record shows, is to enforce a corporate duty, as such, against a corporate officer, as such, and when the officer and the duty (if it exists) have existence solely by force of a Connecticut statute. It is not a proceeding on the part of the relator to require the respondent to perform a duty due by h m as a person, in his individual capacity merely, but as the president of a foreign corporation and in his official capacity entirely.
But it has been insisted that, since the said respondent resided in Delaware, and had the needed books, etc., in his possession here, the Court below had jurisdiction of the cusios and the res, and, therefore, it might lawfully award the mandamus to compel the respondent to allow the required inspection and copies thereof. But since it has been shown that neither the said corporation is a corporation, nor the respondent a corporate officer thereof, in Delaware, and that the said duty sought to be enforced is not a corporate duity arising either at common law, or under any statute of this State, it follows that it must be a duty due from the respondent as a person, and • in his individual capacity, and not as an officer of said corporation. But the present proceeding is against him as president and officer, and not as an individual merely, and to perform a corporate duty and not an individual duty, and hence the claim on this ground is at variance with the alleged right as claimed of record.
A foreign corporation, having no existence without the limits of the State of its creation, neither it, nor its officers, qua officers^ can be present in Delaware. Its agents are here as individuals merely, and while its property here may be subject to execution in satisfaction of contracts made, or torts done here by its agents, neither the corporation nor its agents are liable to our mandamus to enforce for the benefit of either a resident or non-resident of Delaware any right arising from any of its corporate duties; for these are obligations due only to the foreign State which created it, and, therefore, although there may be jurisdiction over the cusios and the res, for the purposes of actions ex -contractu and ex-delicto, there is none over the corporate duty, as there must be to warrant mandamus in this State, either at common law or under our existing constitution and legislation.
This conclusion rests upon legal theories and principles which are so familiar as to seem fundamental. To these both private corporations and the writ of mandamus owe their origin, and by these they must be recognized and governed in dealing with them. These furnish the reason for the existence of the former, and the ground for the application' of the latter as the appropriate remedy for enforcing the obligations of such corporations to the State of their creation. And these, too, furnish the ancient lines of demarcation which separate and distinguish this form of remedy from all others. Disregard or destroy the distinguishing marks which indicate the established and familiar boundaries of this, or other forms of remedy, and hopeless confusion must prevail, and both lawyers and Courts become embarrassed by perplexing uncertainties.
Apply our writ of mandamus to a case like the pending one, a id its distinctive character and limitations will be discarded, and it may then issue as well against a private person or partnership as against a public officer or a corporation ; and as well to meddle with private affairs as to superintend the public interests. The plea of supposed hardship or inconvenience may possibly induce legislative, but it should not judicial enactment in this behalf. In its use of mandamus the Court of King’s Bench in England, notwithstanding its “high and transcendent” supervisory jurisdiction, kept strictly and faithfully super adequas vias of the Common Law until a departure therefrom was authorized by legislative enactment, and the Superior Court in this State should do likewise.
To extend this investigation further is needless. In my judgment, it has conclusively demonstrated that the Superior Court, in Delaware, has not jurisdiction by mandamus over a private incorporation of exclusively foreign creation, its officers or agents, to enforce the performance of a corporate duty not imposed by any statute of this State, until our Legislature has, by further enactment, conferred such jurisdiction. In the absence of such legislation, therefore, the judgment of the court below awarding the peremptory writ was erroneous and unauthorized.