Bassett v. Atwater

• Court: Connecticut Supreme Court
• Writing for the Court: ANDREWS, C. J.
• Citation: Bassett v. Atwater, 65 Conn. 355, 32 A. 937, 32 L.R.A. 575 (Conn. 1895)
• Decision Date: 08 January 1895
• Parties: BASSETT et al. v. ATWATER et al.

32 A. 937

65 Conn. 355

BASSETT et al.

v. ATWATER et al.

Supreme Court of Errors of Connecticut.

Jan. 8, 1895.

Appeal from superior court, New Haven county; Prentice, Judge.

Application for alternative writ of mandamus by Royal M. Bassett and others, directing William C. Atwater and others, as officers of the Derby Rubber Company, to call a meeting of the stockholders of said company. The writ was quashed upon motion, and petitioners appeal. Reversed.

Edwin B. Gager and William S. Downs, for appellants.

Henry Stoddard and V. Munger, for appellees.

ANDREWS, C. J. The plaintiffs are the owners and holders of more than 200 shares— indeed, of a majority of all the shares—of the capital stock of the Derby Rubber Company, a joint-stock corporation formed under the laws of this state, and located at Derby. The defendant William C. Atwater is the president, and William F. Askam is the secretary, of said corporation. One of the by-laws (the sixth) of said corporation provides, in respect to annual meetings, that: "A written or printed notice of such annual meeting, and also of each special meeting of said corporation, specifying the place, day, and hour of such meeting, shall be given by the president or secretary to each stockholder by leaving it with him or at his residence or usual place of business, or by depositing it in some post office for transmission by mail, postage paid, addressed to him at his last known place of residence, at least five days before said meeting." Another by-law (the seventh) enacts that: "Special meetings of the stockholders of said corporation may be held at any time upon the notice hereinbefore specified, and the secretary or president shall give such notice upon the request in writing of stockholders holding two hundred shares of the capital stock of said corporation calling for such special meeting, and shall specify therein the object and purpose of such meeting." On the 4th day of April, 1894, the plaintiffs united in a written request to the defendants, asking them to call a special meeting of the stockholders of said corporation, specifying therein the object and purpose of such meeting, and also naming a place, a day, and an hour for the holding of the same, which request was on said day placed in the hands of each of said defendants. But the defendants refused to call any such meeting. Thereupon the plaintiffs made application to the superior court for a writ of peremptory mandamus requiring and commanding the defendants to call such a special meeting. An alternative writ was issued, and duly served; and on the return day the defendants appeared in court, and moved to quash the said alternative writ, alleging various reasons for such motion. The court found the application and alternative writ to be insufficient in the law, granted the motion, and quashed the alternative writ. The plaintiffs appealed.

Mandamus, although it is an extraordinary legal remedy, is in the nature of an equitable interference supplementing the deficiencies of the common law. It will ordinarily be issued where a legal duty is established, and no other sufficient means exist for enforcing it. When the object sought can be equally well obtained by other means, as by an action, or by some other form of proceeding, then mandamus will not lie. Thus the enforcement of merely private obligations, such as those arising from contracts, are not within its scope. The essential conditions without which the writ will not be issued to enforce the performance of a ministerial duty are: (1) That the party against whom the writ is sought must be under an obligation, imposed by law, to perform some such duty,—that is, a duty in respect to the performance of which he may not exercise any discretion; (2) that the party applying for the writ has a clear, legal right to have the duty performed; and (3) that there is no other sufficient remedy. In the present case the alternative writ, in point of form, contains allegations which show that all these conditions exist in favor of the plaintiffs; and as these are admitted by the motion to quash to be true, we are to inquire whether any of the allegations are insufficient in the law. The superior court found the insufficiency in the fact that the duty sought to be enforced was one imposed by the by-laws of the corporation. In its memorandum of decision that court said: "The by-laws in question do not have the force or dignity of public law. Their office is a private one, and the duties they impose are private, not public, in their nature. The individuals concerned, and not the public at large, are interested in their obedience. Disobedience of them works a private injury, not a public wrong. Breach of the duties they impose is a breach of private duty, and not of a public trust. * * * The writ of mandamus, therefore, is not a remedy appropriate to the circumstances the complaint discloses." This memorandum seems to indicate that the superior court was of opinion that a writ of mandamus was a remedy to be used only in cases where the duty sought to be enforced was one imposed by public law, and one the nonperformance of which worked a public wrong; and that the alternative writ in this case was defective in both these particulars. But is this true? To speak first of the defect last mentioned, is it true that a mandamus is to issue only to enforce a duty in the performance of which the public at large has such an interest that its nonperformance is in the nature of a public wrong? Perhaps the earlier cases—some of them—mentioned this as a necessary requirement. But even then it was not strictly insisted upon. The writ was often issued in cases where the question in controversy was rather upon some matter of private right than upon a public one. The courts then followed the rule given by Lord Mansfield in Rex v. Barker, 3 Burrows, 1267, that: "The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied." Rex v. Turkey Co., 2 Burrows, 913; Rex v. Wildman, 2 Strange, 879; White's Case, 2 Ld. Raym. 1004; Case of Schriven, 2 Strange, 832; Dacosta v. Russia Co., Id. 783; Anon., Id. 696. In this jurisdiction this feature is substantially disregarded, and a mandamus is issued in cases where the duty is one imposed by public authority, and its nonperformance operates only as a private wrong. Thus, a justice of the peace may be required to correct his record at the application of one who has only a private interest in it. Smith v. Moore, 38 Conn. 105. A judge of probate may be required to amend his record so as to enable a party to take an appeal, though no person in the world is interested in the suit but the appellant Taylor v. Gillette, 52 Conn. 216; Elderkin's Appeal, 49 Conn. 69. See, also, Daly v. Dimock, 55 Conn. 579, 12 Atl. 405; Gilman v. Bassett, 33 Conn. 298; Insurance Co. v. Fyler,

60 Conn. 448, 22 Atl. 494; Brainard v. Staub,

61 Conn. 570, 24 Atl. 1040. We understand this to be the general doctrine in America and England at the present day. Mr. High, in the very first section of his valuable work on Mandamus, says: "The object of a mandamus is to prevent disorder from a failure of justice and a defect of police, and it should be granted in all cases where the law has established no specific remedy, and where in justice there should be one. And the value of the matter in issue, or the degree of its importance to the public, should not be too scrupulously weighed." And in the tenth section: "The test to be applied, therefore, in determining upon 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, who find themselves without an appropriate remedy....