State ex rel. English v. Lazarus
| Decision Date | 18 November 1907 |
| Parties | STATE ex rel. ENGLISH, Appellant, v. LAZARUS et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Richard A. Jones for appellant.
The circuit court of the city of St. Louis had jurisdiction to make the order of peremptory mandamus to compel officers of appellee Acme Cement Plaster Company to allow appellant, a stockholder to inspect records described in the alternative writ. Swift v. State, 6 A. 864, 7 Houst. (Del.) 137; State ex rel. v. Land & Timber Co., 106 La. 633; Guthrie v. Harkness, 199 U.S. 158.
W. E Fisse for respondents.
The plaintiff, to support the jurisdiction of the court in the present instance, relies wholly upon the provisions of section 1024, Revised Statutes 1899, which make foreign corporations, permitted to conduct and carry on business in this State, subject to all the "liabilities restrictions and duties which are or may be imposed upon corporations of like character organized under the general laws of this State." It is noteworthy that the appellant has not cited any authority whatever giving to the provisions of the statute in question the construction for which he now contends. "The general rule on this subject is that such statutes, prescribing the conditions and regulations under which foreign corporations may do business in this State, will not be construed as domesticating such corporations for all jurisdictional purposes, unless such intention is clearly and unmistakably indicated by the affirmative terms of the statute, even where the original purpose was to do business in the particular State. Martens Admr. v. Railroad, 151 U.S. 673-683; Railroad v. Jones, 161 U.S. 545; Markwood v. Railroad Co., 65 F. 817.
--Relator appeals from a judgment denying a peremptory writ of mandamus, commanding the respondents to permit him to inspect the books of the Acme Cement Plaster Company. Said company is incorporated under the laws of the State of Illinois, but its books are in the city of St. Louis, Missouri, in the custody of respondents Samuel Lazarus and Samuel Walker, who are respectively its president and vice-president, and the corporation itself is doing business in this State under authority of our statutes (art. IX, ch. 12, R. S. 1899). Relator, Otto B. English, is the owner and holder of twelve shares of the capital stock of said company and has been since 1900. He alleges that as such shareholder he is interested in the company's business, the value and location of its property and assets, the amount and character of its liabilities, its management, the magnitude of its business and profits, the proceedings had at the meetings of its stockholders and directors, and the names of the other stockholders; that he has made repeated requests of the officers for information concerning these matters, but none has been given him; that on or about February 8, 1906, in default of such information, relator went to the office of the company in the city of St. Louis and requested Walker, as vice-president and custodian of the books in said office, to give relator the information he required but Walker refused to do so; that relator then requested an inspection of the books containing the records of stockholders and directors meetings, names of the stockholders, and the books in which were the accounts of the company, descriptions of its property and assets and their location; that said request was refused and relator was informed he could not get the information he desired except by a legal proceeding. The prayer of the relator was for an order for the inspection of the books and records of the company containing information regarding the matters above recited. In defense it is pleaded that the circuit court of the city of St. Louis has no power to grant the relief prayed, because the Acme Cement Company is organized under the laws of Illinois and has its chief office and place of business in the city of East St. Louis in that State; wherefore the jurisdiction to award such a remedy as relator prays is vested exclusively in the courts of the State of Illinois. In further defense it is alleged that another corporation, the United States Gypsum Company, is engaged in a business similar to the Acme Company's, is in commercial competition with the latter, interested in impairing its business and depreciating its stock, and that this action was instituted, not in good faith, but in behalf of said Gypsum Company; that the latter company is a monopoly and trust designed to control the business of manufacturing and selling cement plastering and therefore is violating the laws of the United States and the State of Missouri; that said Gypsum Company has endeavored to have the Acme Company enter into an arrangement to fix and control the output and price of cement plastering material, but the Acme Company has refused to make any such arrangement; that in consequence of such refusal the said Gypsum Company has for several years and in various ways, interfered with the business of the Acme Company and endeavored to impair and depreciate its stock; that the relator Otto English is one of the vice-presidents of the Gypsum Company and its traffic manager, and as such has attempted to prevent the Acme Company from getting good freight rates from railroad companies and thereby injure the Acme Company's trade; that this interference was made by representations to the railroad companies that the Acme Company had secured its freight rates by the false and fraudulent representations of its officers; that in furtherance of the purpose of the Gypsum Company to prevent the Acme Company from obtaining favorable freight rates, relator, as traffic manager, has threatened and declared his intention to subject the Acme Company and its officers and stockholders to the annoyance of an examination of its books and affairs, whereby facts would be discovered detrimental to the business of the Acme Company and showing that its freight rates were obtained fraudulently and deceitfully. The answer further says that the respondents, while willing at all times to furnish stockholders full and complete information of the affairs of the company, ought not to be compelled to furnish information to a competitor and particularly to one engaged in carrying on business by unlawful methods, or to one who intends to use the information to be derived from such inspection to the detriment and disadvantage of the company. It is further averred that relator's demand for an examination of the books was not for the purpose of enforcing any of his rights as a stockholder, but solely to annoy and injure the company by enabling the Gypsum Company to obtain and use for its own advantage, information concerning the affairs of the Acme Company. It was averred, further, that English was not a shareholder of the Acme Company and there was a general denial of the averments of the alternative writ. The evidence established that English was a stockholder of the Acme Company and had been for eight or ten years, and, also, that he had, at various times, requested information of the officers of the Acme Company regarding its condition and affairs. Letters of his addressed to the president of the company and requesting information regarding its business and financial condition, were introduced in evidence. These letters indicate that respondents were refusing to give relator information on the ground that it would be used to embarrass them and the company. English disclaimed any such purpose and stated several times that his only object was to obtain sufficient...
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