Donaldson v. Boston Herald-Traveler Corp.

• Decision Date: 07 April 1964
• Docket Number: HERALD-TRAVELER
• Citation: 347 Mass. 274,197 N.E.2d 671
• Parties: William H. K. DONALDSON v. BOSTONCORPORATION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 671

197 N.E.2d 671

347 Mass. 274

William H. K. DONALDSON v. BOSTON HERALD-TRAVELER CORPORATION et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 3, 1964.

Decided April 7, 1964.

Robert M. Gargill, Boston, for Boston Herald-Traveler Corp.

Everett H. Parker, Boston, for Old Colony Trust Co.

Frederick D. Vincent, Jr., Salem, for William H. K. Donaldson.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and REARDON, Jj.

WILKINS, Chief Justice.

This bill in equity by a holder of ten shares of the capital stock of the defendant Boston Herald-Traveler Corporation seeks (1) an order that the corporation and its transfer agent, the defendant Old Colony Trust Company, exhibit to him for inspection the stock and transfer books of the corporation; and (2) damages. G.L. (Ter.Ed.) c. 155, § 22. The corporation filed a motion for jury issues, which was denied after hearing, and the corporation excepted. After a later hearing on the merits, a final decree was entered by which the books were ordered to be exhibited and the claim for damages was denied. The plaintiff and the defendants appealed. The judge made a report of the material facts found by him. The evidence is reported.

Section 22, so far as material, provides: 'The stock and transfer books of every corporation, which shall contain a complete list of all stockholders, their residences and the amount of stock held by each, shall be kept at an office of the corporation in the commonwealth for the inspection of its stockholders. * * * If any officer or agent of a corporation having charge of such * * * books or records refuses or neglects to exhibit them or to submit them to examination as aforesaid, he or the corporation shall be liable to any stockholder for all actual damages sustained by reason of such refusal or neglect, and the supreme judicial or superior court shall have jurisdiction in equity, upon petition of a stockholder, to order any or all of said * * * books or records to be exhibited to him * * * at such a place and time as may be designated in the order, but in an action for damages or a proceeding in equity under this section for neglect or refusal to exhibit for inspection the stock and transfer books, it shall be a defence that the actual purpose and reason for the inspection sought are to secure a list of stockholders for the purpose of selling said list or copies thereof or of using the same for a purpose other than in the interest of the applicant, as a stockholder, relative to the affairs of the corporation.'

1. The jury issues sought are: '(1) Whether petitioner [plaintiff] is actually the beneficial owner of the Boston Herald-Traveler stock recorded in his name. (2) Whether petitioner [plaintiff] seeks inspection of the stock and transfer books of Boston Herald-Traveler Corporation to secure a list of stockholders in order to use the same for a purpose other than in the interest of the petitioner [plaintiff], as a stockholder, relative to the affairs of said corporation.'

There was no error in the denial of the motion. The basis of the contention of the corporation that it is entitled as of right to have the issues framed is art. 15 of the Declaration of Rights of the Constitution of the Commonwealth. This reads, 'In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.'

There are fatal flaws in the defendants' position. To begin with, this is not a controversy 'concerning property.' We do not accept the conclusion of the syllogism that the suit 'involves a right which, apart from its limitations, is incident to the ownership of corporate stock' and 'is therefore a suit concerning property.' No convincing authority is cited in support of the proposition. The plaintiff's ownership is not in controversy. The defendants are not trying to take the stock from him. They merely do not propose to allow him, if they can prevent it, to exercise a stockholder's right of examining corporate books. If this should be held to be a controversy 'concerning property,' it would be difficult indeed to determine where a line consistently could be drawn.

In the next place, this is not a case which would have been triable to a jury in 1780 when the Constitution was adopted. The defendants concede that the constitutional guaranty does not extend to such a case. The scope and meaning of the constitutional right have been explained in Parker v. Simpson, 180 Mass. 334, 351-355, 62 N.E. 401, and in Commissioner of Banks v. Harrigan, 291 Mass. 353, 354-355, 197 N.E. 92, '[W]hether in any particular case the right to a trial by jury is preserved depends upon the question whether the subject matter of the cause of action is one pertaining to equity jurisprudence as generally understood in England and Massachusetts at the time of the adoption of the Constitution.' Commissioner of Banks v. Harrigan, supra, 291 Mass. 355, 197 N.E. 94. Article 15 'in no way is inconsistent with the establishment of a court of chancery having general jurisdiction, as it was at the time of the adoption of the constitution, and proceeding in accordance with its fundamental rules of practice as then existing. One of these rules was that trial by jury should be at the discretion of the court.' Parker v. Simpson, supra, 180 Mass. 355, 62 N.E. 409. In new forms of equity procedure created by statute the defendants, who, of course, have not voluntarily chosen the procedure, can insist as matter of right upon issues other than those which are purely equitable in their nature. Stockbridge v. Mixer, 215 Mass. 415, 418, 102 N.E. 646. Consolidated Ordnance Co. v. Marsh, 227 Mass. 15, 22, 116 N.E. 394. McAdams v. Milk, 332 Mass. 364, 367, 125 N.E.2d 122.

We are not dealing, however, with that type of case. The present equitable proceeding the defendants seek to distinguish from the usual equity suit by saying that the equitable remedy granted by G.L. (Ter.Ed.) c. 155, § 22, was first enacted in St.1903, c. 437, § 30, long after 1780, and that theretofore the remedy available to a stockholder seeking an inspection of corporate records was a petition for a writ of mandamus.

The defendants urge that there was a right to a jury in mandamus cases. The only Massachusetts decision is to the contrary. In Casey v. Justice of the Superior Court, 229 Mass. 200, 201, 118 N.E. 297, the clear and definite statement was made: 'A petition for mandamus was not triable to a jury when our Constitution was adopted and the petitioner [for such a writ] does not present a case within article 15 of the Declaration of Rights.' The defendants note that the only authority cited, Attorney Gen. v. Sullivan, 163 Mass. 446, 40 N.E. 843, 28 L.R.A. 455, was '[a]n information in the nature of a quo warranto.' This objection, however, is not formidable, as the two writs, originating as methods of trying title to public office, complemented each other and in certain cases may have been concurrent remedies. 44 Am.Jur., Quo Warranto, § 12. 55 C.J.S. Mandamus § 5. 3 Blackstone, Commentaries, *263-*265.

At common law the return in a proceeding for a writ of mandamus was conclusive. Hence, there could be not trial by jury, for no issue of fact could be tried. Such a trial was provided by 9 Anne, c. 20 (enacted in 1711), but that statute was not part of the common law and was never in force in this Commonwealth. Howard v. Gage, 6 Mass. 462, 464; Attorney Gen. v. Sullivan, 163 Mass. 446, 448, 40 N.E. 843. See Castle v. Lawlor, 47 Conn. 340; State v. County Commrs., 21 Fla. 1, 19; State ex rel. Davis v. City of Avon Park, 117 Fla. 565, 569-570, 158 So. 159, 98 A.L.R. 230; Bradenton v. State ex rel. Perry, 118 Fla. 838, 841-842, 160 So. 506, 100 A.L.R. 400; State v. Minnesota Thresher Mfg. Co., 40 Minn. 213, 215, 41 N.W. 1020; Chumasero v. Potts, 2 Mont. 242, 258-272, writ of error dismissed 92 U.S. 358, 23 L.Ed. 499; State ex rel. Valley Center Drain Dist. v. Board of Com'rs of Big Horn County, 105 Mont. 290, 293, 72 P.2d 461; Mayer v. State, 52 Neb. 764, 767, 73 N.W. 214; State ex rel. Strange v. School Dist. of Nebraska City, 150 Neb. 109, 113, 33 N.W.2d 358; Dutten v. Village of Hanover, 42 Ohio St. 215, 217; Marler v. Wear, 117 Tenn. 244, 245-246, 96 S.W. 447; Ferris, Extraordinary Legal Remedies, § 252; Shortt, Informations Mandamus and Prohibition, 413; 2 Spelling, Injunctions and Other...