Brooks v. State

• Decision Date: 17 January 1911
• Citation: 79 A. 790,26 Del. 1
• Court: Supreme Court of Delaware
• Parties: GEORGE H. BROOKS, defendant below, plaintiff in error, v. THE STATE OF DELAWARE, upon the relation of ROBERT H. RICHARDS, Attorney General, plaintiff below, defendant in error

79 A. 790

26 Del. 1

GEORGE H. BROOKS, defendant below, plaintiff in error, v. THE STATE OF DELAWARE, upon the relation of ROBERT H. RICHARDS, Attorney General, plaintiff below, defendant in error

Supreme Court of Delaware

January 17, 1911

Supreme Court, January Term, 1911.

WRIT OF ERROR, (No. 1, June Term, 1910) to Superior Court for New Castle County.--No. 108, June Term, 1908 below. Information in the nature of a Writ of Quo Warranto. The facts of the case and specifications of the assignments of error fully appear in the opinion.

(See same case, in court below, 1 Boyce 129.)

ARGUMENT OF COUNSEL FOR PLAINTIFF IN ERROR.

I.

The Invalidity of the Service.

The plaintiff in error was properly in attendance on the United States Circuit Court and privileged from service of summons when the rule to show cause in this case was served upon him.

Witnesses in common with parties, barristers, solicitors and in short all persons who have that relation to a suit which calls for their attention, are protected from arrest upon any civil process while going to the place of trial, while attending it for the purpose of the cause and while returning home; eundo morando et redeundo.

Taylor on Ev., Sec. 1330.

The protection given to suitors and witnesses is extended to every case where the attendance is a duty in conducting any proceeding of a judicial nature, or where the attendance is necessary in court.

Bacon's Abr., Privilege, B2.

The privilege extends to the service of a summons as well as to an arrest.

Bacon's Abr., Privilege, B2.

Courts of justice ought everywhere to be open, accessible, free from interruption and to cast a perfect protection around every man who necessarily approached them.

Halsey v. Stewart, 4 N. J. L., 367.

As said in Nichols v. Horten, 14 Federal, 330, "Experience has shown that in order that causes may be fully heard and the orderly administration of justice may be assured, it is necessary that parties, witnesses and jurors shall be protected from service of process in civil action while they are in good faith in attendance upon the trial of causes * * *. Hence, as one of the necessities of the administration of justice' (Person v. Grant. 66 N.Y. 124), the rule has come to be regarded as the privilege of the court as affecting its dignity and authority and rests, therefore, upon sound public policy."

Kinne v. Laut, 68 F. 436 (440).; Larned v. Griffen, 12 Fed., Rep. 590; 1 Foster's Fed. Pr. Sec. 98, p. 196-7; Brooks v. Farwell, 4 F. 166.

In Matthew v. Tufts, 87 N.Y. 568, defendant, a resident of Boston, came to New York to attend meeting of creditors of Matthews, bankrupt. Attended solely as a creditor to prove certain debts, and to participate in choice for assignee. While attending summons in this action was served on defendant. Held he was privileged from service of process. The court said: "This immunity does not depend upon statutory provisions but is deemed necessary for the due administration of justice. It is not confined to witnesses but extends to parties as well and it is abundantly sustained by authorities. * * * That the defendant was in attendance only as a party and as attorney for other parties, we think that he was privileged from service of process or summons while so attending. All concur."

Clinton v. Winslow, 20 Blatch C. C. 82; Parker v. Marco, 20 L. R. A. 45; Humphrey v. Cummings, 5 Wend., 90; Holmes et al. v. Morgan Nelson et al., 1 Phila. 217; Huddeson v. Prizer, 9 Phila., 65.

In Halsey v. Stewart, 4 N. J. L. 366, the court seemed much inclined to think that not only witnesses but all persons who were necessarily coming to or returning from it, either directly or on business of the court or in any manner relative to that business, were entitled to a freedom from arrest and that to arrest them was a contempt of the court.

Meekins v. Smith, 1 H. Bl., 636 (1791); Andrews v. Lembeck, 46 Ohio St. Rep., p. 38.

The President of a corporation is exempt from service when attending courts on the company's business.

Mulhearn v. Press Pub. Co., 53 N. J. L. 153; Citizens Nat'l Bank of Kirgman v. Berry, 37 P. 131; Morse on Banks & Banking, Sec. 143; Boone, Banking, Sec. 144; Reno Water Co. v. Lette, 30 P. 702; Beebe v. George H. Beebe Co., 64 N. J. L. 497; The American Ins. Co. v. Oakley et al., 9 Paige's Chancery, 496 (501); Trustees of Smith Charities v. Connoly, 157 Mass. 272 (275-6).

The President of the bank, being its chief executive officer, has a right as such to appear and answer for it, and employ counsel for its defense.

Savings Bank of Cincinnati v. Benton, 59 Ky. (2M, etc.) 240 (244); Feree & Co. v. Pierce, 31 Pittb. Leg. J. (N. S.) 354, 25 Pa. Co. Ct. R. 112; Central Trust Co. v. Milwaukee St. Ry. Co., 74 F. 443; First National Bank v. Ames, 39 Minn. 129.

The charter of Geo. Brooks and Son Company provides:

"This corporation shall have also the following powers, viz.: To purchase, take, own, hold, deal in, mortgage or otherwise lien and to lease, sell, exchange, transfer or in any manner whatever dispose of real property wherever situated and to have one or more offices out of the State of Delaware and to carry on business and to promote its objects without restriction as to place or amount. To do any or all of the things herein set forth to the same extent as natural persons might or could do in any part of the world."

Its by-laws provide:

The President shall be the chief executive of the company in the management of its affairs and in carrying out the objects for which the company was created.

First Para. Art. 6, By-Laws.

Every corporation created under the provisions of this act shall have power:

"To sue and be sued, complain and defend in any court of law or equity."

"To conduct business in this state, other states, the District of Columbia, the territories and colonies of the United States and in foreign countries and have one or more offices out of this state, and to hold, purchase, mortgage and convey real and personal property out of this state provided such powers are included within the objects set forth in its Certificate of Incorporation."

General Corporation Law, Sec. 2.

The service of a subpoena or other process is not necessary in order to afford the witness this protection.

Taylor on Ev., § 1330; Jones v. Knauss, 31 N. J. 211, and note; Skinner and Mounce Co. v. Waite et al., 155 F. 828.

Right to attend arguments.

Kinne v. Laut, 68 F. 436.

"A suitor who has come from his home in a foreign jurisdiction upon the request of his counsel and for the purpose of consultation with such counsel during the argument of a demurrer, is privileged from the service of process in any court of such jurisdiction during the argument and pending temporary adjournment thereof for the convenience of the court."

Ex parte McNeill, 6 Mass. 245; Torry v. Bast, 3 W. N. C. 63; Harkness v. Hyde, 98 U.S. 476 (479); Railroad Company v. Pinkney, 149 U.S. 194.

II.

All shareholders of Delaware corporations are entitled to vote for directors.

The holders of preferred stock were entitled to vote notwithstanding the charter and by-laws of the company because of the provisions of the Constitution of the state in force at the time the corporation was created.

Article 9, Sec. 6, of Constitution of 1897:

"In all elections for directors or managers of stock corporations, each shareholder shall be entitled to one vote for each share of stock he may hold."

This provision became a part of every charter thereafter obtained and no provision of any charter granted, and no by-laws, or regulation of the corporation, and no agreement of corporators or stockholders, inconsistent with such constitutional provision, would be valid for any purpose or under any circumstances.

Where the Legislature uses clear and plain words, courts of justice will not suffer them to be set aside either by usage or construction.

Taylor v. Griswold, 14 N. J. L. 251.

It is only when the language is ambiguous that the courts are called on to construe or interpret.

Sedgwick on the Cons. of Stat. and Const. Law, 2d Ed., 195.

Where the law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.

Fisher v. Blight, 2 Cranch, 358 (399).

When the law is clear and explicit and its provisions are susceptible of one interpretation, its consequences, if evil, can only be avoided by change of the law itself, to be effected by legislative and not judicial action.

Sedgwick on the Cons. of Stat. Law, 195; Bosely v. Mattingly, 4 B. Monroe (Ky.) 89.

Our constitutional provision, Sec. 6, Art. IX., being unambiguous, there is no room for construction, but the constitutional debates show the object of the section to be as stated.

The stenographic report of the constitutional debates shows that the committee on corporations made to the convention two separate reports embodying a suggested article on corporations. These reports were the subject of long debates and elaborate discussion. In neither of these reports nor in any other way was this Section 6 of Article 9. brought before the convention during its entire session in any form whatever, until the day when the rest of the article, having been finally put into satisfactory shape, was adopted in the convention. At this stage the chairman of the committee on corporations, but on his own personal motion in doing so stated to the convention the meaning, construction and intent of the provision.

The proceedings of the convention with regard to Section 6 are in full as follows:

"Nathan Pratt: Mr. President, I wish to offer the following as Section 6 of Article...