Delaware Surety Co. v. Layton

• Decision Date: 16 November 1901
• Citation: 50 A. 378
• Court: Court of Chancery of Delaware
• Parties: DELAWARE SURETY CO. v. LAYTON, State Secretary

50 A. 378

DELAWARE SURETY CO. v. LAYTON, State Secretary

Court of Chancery of Delaware

November 16, 1901

David T. Marvel and William S. Hilles, for complainant.

Herbert H. Ward, for defendant.

OPINION

NICHOLSON Chancellor.

The complainant in this cause is a corporation created by and existing under the laws of the state of Delaware, having been incorporated under the provisions of a statute entitled "An act providing a general corporation law," approved March 7, 1901. In accordance with the provisions of that statute, it has made, through its president and secretary, a certificate stating the amount paid of the installments or calls of its capital stock, and whether paid in cash or by the purchase of property, and also stating the total amount of its capital stock paid, which certificate signed and sworn to by the president and secretary of the said Delaware Surety Company, the said president and secretary did cause to be filed in the office of the secretary of state, the defendant in this cause, as provided by said general act of incorporation, which said certificate now remains in the office of the secretary of state, the said Caleb R. Layton. The complainant filed its amended bill on the 12th day of November, instant, in which it prays, inter alia, as follows: "(2) That the said Caleb R. Layton may be perpetually restrained by the injunction of this honorable court from removing or permitting to be removed from the office of the secretary of state the said certificate so filed by your orator as aforesaid, and that a preliminary injunction may issue to restrain the said Caleb R. Layton in like manner until the further order of the chancellor." On the said 12th day of November a hearing was had on the motion for a preliminary injunction, on bill, answer, and affidavits, and the questions involved were argued at some length by the solicitors for the respective parties, the two contentions of complainant's solicitors being: First that the defendant has no right to remove from his office and take into a foreign jurisdiction any paper regularly filed in said office; and, second, that such proposed action can be enjoined by the chancellor in this suit.

Neither the counsel in the cause nor myself have been able to find notwithstanding the most diligent search, any case where it appears that either a state or county officer had ever attempted to take out of the jurisdiction of a state an original paper properly filed in any court or public office therein. It is admitted that the certificate in question was properly filed, and it is not disputed by defendant's solicitor that the word "filing" carries with it the idea of permanent preservation; that the paper filed becomes part of the permanent records of the public office where it is filed. It is contended, however, by defendant's solicitor, that, under the peculiar circumstances of this particular case, it would be lawful for the defendant to take this certificate of incorporation out of his office, and carry it out of the jurisdiction of the state, and also that, even conceding the unlawfulness of the proposed removal of the certificate, the chancellor would not enjoin it, because the complainant does not come into court with clean hands. The circumstances upon which these claims are based are briefly as follows: The president and secretary of the complainant, the said Delaware Surety Company, in certain proceedings now pending before a committing magistrate in New York City, are charged with committing the crime of perjury, being accused of falsely swearing to the certificate above described, now on file in the office of the secretary of state, which certificate is alleged to have been verified by them in the city of New York before a notary public, who in the examination now pending before the New York magistrate is alleged to have asserted that he was without any present memory as to whether or not he had acted as notary public; and it is also alleged that his memory was not refreshed by the inspection of a certified copy of the said certificate, but that it might be refreshed by an inspection of the original certificate. These are the allegations contained in an affidavit filed in this cause made by Mr. Herbert R. Limberger, who describes himself in said affidavit as one of the attorneys for Ernest C. Wagenfuhr, the complainant, as Mr. Limberger states, in a certain proceeding now pending in a magistrate's court in the city of New York, wherein the president and secretary of the Delaware Surety Company are charged with committing the crime of perjury. Admitting all these allegations to be true, I am entirely unable to see what is their relevancy to the question of the right of the defendant to take from the files of the office of the secretary of state a certificate regularly filed therein, and to carry it out of the jurisdiction of the state. It is evident, upon a moment's reflection, that if, as the learned counsel contends, the secretary of state has the power to remove papers from the files of his office to other states whenever an occasion arises which causes him to think it proper and right so to do, then the courts of the state have nothing whatever to do with the exercise of the secretary's discretion. The court of chancery could not enjoin him from the exercise of a discretionary power, no matter how disastrous or scandalous might be the occasion of its exercise; nor could the superior court compel him by mandamus to exercise such power, no matter how beneficent and desirable its exercise might appear to be in some peculiar combination of circumstances. All this is elementary law, obvious at a glance. On the other hand, if he does not possess such a power, his exercise of it is an illegal act, and his motives, or the uses to which he might intend the paper to be put in the foreign jurisdiction to which he would carry it, cannot in any way affect the illegality of the act. It is not suggested for a moment that any such power is given to the secretary of state by statute, and it is impossible, therefore, to differentiate his authority in this respect from that of any other public officer into whose custody papers are delivered to be filed. The said general act of incorporation (being chapter 167, vol. 22, Del. Laws) provides in section 6 that "said certificate shall be filed in the office of the secretary of state, who shall furnish a certified copy of the same under his hand and seal of office," etc. Is it possible to draw from this language any other inference than that the secretary of state is required by it, under his oath of office, such certificates safely to...