State ex rel. Whitcomb v. Lockerby

• Decision Date: 11 June 1894
• Docket Number: 8954
• Parties: State ex rel. George R. Whitcomb et al. v. W. E. Lockerby et al
• Court: Minnesota Supreme Court

59 N.W. 495

57 Minn. 411

State ex rel. George R. Whitcomb et al. v. W. E. Lockerby et al

No. 8954

Supreme Court of Minnesota

June 11, 1894

Argued June 8, 1894

Application to this court June 4, 1894, by George R Whitcomb, Carman N. Smith and eight others, relators, for leave to file an information in the nature of quo warranto against W. E. Lockerby and S. A. Locke for intruding into and usurping the offices of directors, president and vice-president of the Northern Shadecloth Co., a corporation created under 1878 G.S. ch. 34, Title 2. Their verified petition stated that two of the seven directors of the corporation having sold their stock resigned as such officers and at a subsequent special meeting of the stockholders one faction voted for the election of Lockerby and Locke to the vacancies and the other faction voted for two other persons that at the election disputes arose over the validity, title and control of certain shares of the stock and that on the decision of these disputes depended the result and the future control of the corporate affairs, that Lockerby and Locke claimed to have been elected directors and that two of the old directors united with them and elected Lockerby president and Locke vice-president of the board. An order was granted requiring Lockerby and Locke to show cause before this court on June 8, 1894, why Whitcomb and his party should not have leave to file their relation and obtain a writ of quo warranto directed to them for intruding into and usurping the offices of directors, president and vice-president of the corporation. Lockerby and Locke appeared and opposed the application for leave to file the information and moved the court to discharge the order to show cause.

Application denied.

Carman N. Smith, for Whitcomb, et al.

The motion is properly made without the intervention of the Attorney General. The proceeding is taken under the provisions of 1878, G. S. ch. 63, § 1, and not under the provisions of ch. 79. The proceeding is to be governed by the rules of the common law. State ex rel. v. Sharp, 27 Minn. 38. Where the proceeding is one to forfeit and take away the franchise of a corporation or to prevent certain persons from acting as a corporation the Attorney General only can proceed. State v. Sibley, 25 Minn. 387. He may proceed in all other cases as in proceedings to oust one from the office of county treasurer. State ex rel. v Sanderson, 26 Minn. 333. Or from the office of supervisor of a town. State ex rel. v. Guiney, 26 Minn. 313. Or from the office of director of an independent school district. State ex rel. v. Sharp, 27 Minn. 38. But where the proceeding is one to try the title to an office in a private corporation, the result thereof affecting only the stockholders of the corporation, though the Attorney General may institute such a proceeding if he chooses, yet any parties showing an interest in the matter may apply to the court without his intervention. State ex rel. v. Hammer, 42 N. J. Law, 435; Gunton v. Ingle, 4 Cranch C. C. 438; State v. Brown, 5 R. I. 1; Barnum v. Gilman, 27 Minn. 466; Murphy v. Farmers' Bank, 20 Pa. St. 415; Commonwealth ex rel. v. Swank, 79 Pa. St. 154; State ex rel. v. St. Paul & S. C. R. Co., 35 Minn. 222.

Upon this order to show cause the court will consider whether the applicants have made out a prima facie case, and are so interested pecuniarily in the matters involved as to entitle them to become relators. The cause will not at this stage be tried upon its merits. The rights of the parties will not be determined upon ex parte affidavits. The court will look into the case only so far as to see that the applicants have rights and interests in the matters here in controversy, which should be submitted to the court for adjudication upon testimony taken upon notice.

Francis G. Burke, for Lockerby, et al.

This court should not exercise jurisdiction, because it appears that the relators have another remedy, which is prescribed by 1878 G. S. ch. 79, and which is adequate for the relief asked. The granting of leave to file an information in this court is not a matter of strict legal right, but is within the discretion of the court. Leave ought not to be granted where the law furnishes another remedy (especially upon the application of a private person), unless under special and exceptional circumstances. None such exist in this case, and the statutory remedy ought to be pursued in the District Court. Simpson v. Dowlan, 33 Minn. 536; State ex rel. v. Gates, 35 Minn. 385; State ex rel. v. Harrison, 34 Minn. 527; State ex rel. v. Minnesota Thresher Mfg. Co., 40 Minn. 213.

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