Merchants' Broom Co. v. Butler
| Decision Date | 19 November 1915 |
| Citation | 70 So. 383,70 Fla. 397 |
| Court | Florida Supreme Court |
| Parties | MERCHANTS' BROOM CO. et al. v. BUTLER et al. |
Error to Circuit Court, Duval County; D. A. Simmons, Judge.
Mandamus by J. D. Butler and others against the Merchants' Broom Company, a corporation, and others. Judgment for plaintiffs and defendants bring error. Reversed.
Syllabus by the Court
In mandamus proceedings the alternative writ takes the place of a declaration at law, and it is essential that it should show a clear prima facie case in favor of the relator.
The alternative writ in mandamus proceedings must show a clear prima facie case in favor of relator. In order to make out a prima facie case the writ should allege all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him, as well as the facts that entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation.
A demurrer to an alternative writ of mandamus stands upon the same footing as a demurrer in any other action at law, and is to be treated in the same way; that is, as admitting as true all such matters of fact as are sufficiently pleaded.
A demurrer to an alternative writ of mandamus admits as true all well-pleaded allegations of fact and all fair and pertinent inferences or conclusions of fact in the writ that are not inconsistent with or repugnant to accompanying specific detailed allegations of facts and circumstances; but it does not admit conclusions of law stated in the writ.
In passing upon a demurrer to an alternative writ of mandamus matters dehors the writ cannot be considered, but only such matters as appear upon the face of the writ.
If an alternative writ of mandamus shows a prima facie case, it is not demurrable.
As the alternative writ in mandamus proceedings stands as the pleading on the part of the relators, if they ask too much the respondents may show this as a sufficient cause for not complying with the mandate of the writ.
The mandate of an alternative writ in mandamus proceedings must be enforced in its entirety or else not enforced at all, and where a demurrer is interposed to the alternative writ, and it is made to appear from the face of such writ that the relators are not entitled to have the order enforced as a whole, the demurrer should be sustained, with leave to the relators to amend such writ, if they should be so advised.
The committee of one appointed by the stockholders representing one-tenth of all the subscribed stock of a corporation to inspect the books, records, and papers of such corporation, under the provisions of section 2672 of the General Statutes of Florida, is not required to be a stockholder in the corporation.
The stockholders representing one-tenth of all the subscribed stock of a corporation are the real parties in interest, and are properly made relators in mandamus proceedings to enforce the right to an inspection of the books, records, and papers of such corporation conferred by section 2672 of the General Statutes of Florida, and such stockholders are not interested or concerned in having a certificate of stock which has been assigned to the committee of one appointed by them under such statute transferred upon the corporate books.
The writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy; therefore two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce.
Section 2672 of the General Statutes of Florida does not confer upon the court authority to require a corporation to permit a committee appointed by stockholders representing one-tenth of all the subscribed stock of such corporation to make an audit of the books and records of the corporation, and it is erroneous to issue an alternative writ in mandamus proceedings requiring the corporation to permit such audit, especially when it appears upon the showing made by the relators the court was not in a position to determine that such audit was necessary.
COUNSEL Johnson & McIlvaine, of Jacksonville, for plaintiffs in error.
Milam, & Milam, of Jacksonville, for defendants in error.
J. D. Butler and others filed a petition for a writ of mandamus against the Merchants' Broom Company, a corporation, P. G. Russell, president of said corporation, and Willet Groover, secretary thereof. An alternative writ issued against the respondents, to which the respondents unsuccessfully interposed a demurrer, whereupon a peremptory writ was awarded. The respondents have brought such final judgment here for review, and have assigned as errors the order for the alternative writ, the overruling of the demurrer interposed thereto, and the order awarding the peremptory writ.
Very concisely stated, the alternative writ recites that it had been made to appear to the court that the petitioners, as relators, were the owners of and represented more than one-tenth of all the subscribed stock of the Merchants' Broom Company, a corporation, and had appointed Robert R. Milam a committee of one, and, as such committee, had authorized, empowered, and instructed him 'to inspect the books and records of said corporation, to prepare an audit thereof, to demand and receive all such information, transcripts, and papers, and make such investigations as the law permits a stockholder, and for the said purpose and with that end in view to do all those acts and things, and invoke such aid of the courts as shall to him seem expedient.' Such writ also recites that it had been further made to appear to the court that a certain named stockholder had assigned to said Milam ten shares of the capital stock of such corporation, and that Milam had made demands upon such corporation through its secretary for the transfer upon the books of the company of the certificate of the ten shares of stock so assigned to him, and also for permission, as the committee appointed by the other relators, to inspect the books and records of such corporation, but that the corporation had neglected, failed, and refused to accede to any of the requests or demands so made upon its officers.
After making such recitals, the writ contains the following order:
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... ... Railroad Com'rs ... v. Atlantic Coast Line R. Co., 67 Fla. 441, 63 So. 729; ... Merchants' Broom Co. v. Butler, 70 Fla. ----, 70 ... So. 383. Four of the railroad corporations named in ... ...
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