State ex rel. Bross v. Carpenter

• Decision Date: 27 February 1894
• Citation: 51 Ohio St. 83,37 N.E. 261
• Parties: STATE ex rel. BROSS et al. v. CARPENTER et al.
• Court: Ohio Supreme Court

37 N.E. 261

51 Ohio St. 83

STATE ex rel. BROSS et al. v. CARPENTER et al.

Supreme Court of Ohio.

February 27, 1894

Error to circuit court, Ashtabula county.

Mandamus by the state of Ohio, on the relation of Bross and others against Carpenter and others, the president, secretary, and treasurer of the Baker Engine & Machine Company. From a denial of the writ, plaintiff brings error. Affirmed.

Syllabus by the Court

When the proper officers of a private corporation organized for profit refuse, on demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damages, or to enforce the issue and delivery of such certificate in equity, either of which he may pursue, at his election. Mandamus is not the proper remedy.

Northway & Fitch and Tracy Barnum, for plaintiff in error.

George A. Groot, for defendants in error.

WILLIAMS, J.

The original action was mandamus, brought in the court of common pleas of Ashtabula county by the plaintiff in error against the president, secretary, and treasurer of the Baker Engine & Machine Company, a manufacturing corporation organized in this state, to compel them to issue to the relators, Bross and Baker, certificates for 310 shares of the company's stock, of $100 each, which it is alleged the relators duly subscribed and paid for, and for which the defendants refuse to issue certificates to them. The relators allege, in general terms, that they have no adequate remedy at law, and pray for a peremptory writ. The answer denies that the relators paid for the stock, or paid any sum whatever on their subscription, and avers they are indebted to the company for the full amount thereof namely, $31,000. The court found the issues for the defendants, and held, furthermore, that the remedy of the relators at law was adequate, and on both grounds denied the writ. The circuit court, to which the cause was taken on appeal, stated its conclusions of fact and of law separately, at the request of the plaintiff. It found that the relators fully paid for the stock, and were entitled to the certificates, but held that their remedy was in equity, and for that reason refused the writ; and it is claimed here that, in so holding, that court committed an error.

The cases are in conflict upon the question whether the remedy by mandamus may be employed to compel the issue or transfer of certificates of stock of a private corporation. The remedy in this state is controlled by statutory regulations, which define the writ, and determine the cases in which it may issue. ‘ Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.’ Rev. St. § 6741. A limitation upon the remedy is contained in section 6744, which provides that ‘ the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.’ The duty of issuing certificates of stock of a private corporation to those entitled to receive them is specially enjoined upon its officers, it is claimed, by the following provision contained in section 3254 of the Revised Statutes, viz.: ‘ Stockholders shall be entitled to receive certificates of their paid up stock in the company, and the president and secretary of the company shall, on demand, execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company.’ And we think there can be no doubt that such a corporation is bound, through its proper officers, to issue, to each stock subscriber who has fully paid for his stock, a certificate truly representing his interest in the corporation.

But the question still remains, what is...