State ex rel. Wilson v. St. Louis & S. F. Ry. Co.

• Decision Date: 14 February 1888
• Parties: THE STATE ex rel. W. C. WILSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

29 Mo.App. 301

THE STATE ex rel. W. C. WILSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

February 14, 1888

APPEAL from the St. Louis Circuit Court, HON. JAMES A. SEDDON Judge.

Affirmed.

JOHN O'DAY and E. D. KENNA, for the appellant: A writ of mandamus will not issue merely to permit a stockholder to gratify an idle curiosity in the examination of corporate records, but the stockholder must allege and prove that he has some specific interest at stake rendering the inspection necessary, or some beneficial purpose for which the examination is desired. High on Ex. Rem., sec. 310 p. 240; People v. Walker, 9 Mich. 329; Hatch v City, 1 Rob. (La.) 470; King v. Merchant Tailors' Co., 2 Barn. & Ald. 115; People v. Ben. Ass'n, 98 Ill. 635; State ex rel. v. Flad, 26 Mo.App. 500; State ex rel. v. Mfg. Co., 21 Mo.App. 526. The court erred in refusing to quash the service of the writ upon O'Day and in granting a peremptory writ of mandamus. The writ must be served upon the officer of the corporation who has power and whose duty it is to execute it, and against whom an attachment to enforce obedience may issue. High on Ex. Rem., sec. 442; Tapping on Mand., 315; Mayor v. Lord, 9 Wall. 409; People v. Common Council, 3 Keyes 81; Com. Dig. " Mandamus; " Tapping on Mandamus, 341; Queen v. Ledgard, 1 Q. B. 616; Dillon on Mun. Corp., secs. 701-704; People v. Hayt, 66 N.Y. 606. A peremptory writ will not issue where it will be fruitless. Commonwealth ex rel. v. Supervisors, 29 Pa.St. 121; Moses on Mandamus, 200. If there is any other specific or adequate remedy at law mandamus will not lie; it only lies to prevent an irreparable injury, or one which cannot be redressed at law. Moses on Mandamus, 177; State ex rel. v. Rombauer, 46 Mo. 155.

F. H. BACON, for the respondent: The relator's proper remedy in this matter was an action of mandamus, and the alternative writ, which is the declaration as well as the writ (Hambleton v. Dexter, 89 Mo. 188), makes out a sufficient cause of action. People v. Throop, 12 Wend. 183; People v. Pacific Mail, 50 Barb. 280; People v. Railroad, 18 N.Y. 1; High on Extra. Leg. Rem., sec. 308; Cotheal v. Brouwer, 5 N.Y. 562; Brouwer v. Cotheal, 10 Barb. 216; Cockburn v. Bank, 13 La.Ann. 290. The law and the right are imperative upon the court. Moody v. Fleming, 4 Ga. 117; People v. Waters, 22 How. Pr. (N. Y.) 291. The English cases show that the courts of that country uniformly enforce by mandamus the right of a stockholder to inspect the corporate books. Angell & Ames on Corp., sec. 707. Mandamus will properly lie where the relator has a specific right and the law has provided no other specific remedy. State v. McAuliffe, 48 Mo. 113; Dunklin v. District Court, 23 Mo. 449; State v. County Court, 41 Mo. 225; Commonwealth v. Pittsburg, 34 Pa.St. 496. " Where a statute imposes a specific duty, either in express terms or by a fair and reasonable implication, and there is no other specific and adequate remedy, a mandamus may be awarded to compel performance of the duty." People v. Ins. Co., 19 Mich. 392; People v. Mayor, 10 Wend. 395; King v. Railroad, 2 B. & A. 646; Ottawa v. The People, 48 Ill. 239. And mandamus will lie although the relator may have his action for damages. State v. Ryan, 2 Mo.App. 303; Cockburn v. Bank, 13 La.Ann. 291; People v. Taylor, 30 How. Pr. 78; State v. Railroad, 2 Cent. Rep. (N. J.) 726; People v. Taylor, 1 Abb. Pr. (N. S.) 200; 30 How. Pr. 78; Buck v. City of Lockport, 6 Lans. (N. Y.) 251. It was not necessary that there should have been a positive refusal of the company to exhibit the books; it was enough if there was an unreasonable delay and a manifest intention not to comply with the law. Cleveland v. Board of Finance, 38 N.J. Law, 259; Commonwealth v. Pittsburg, 34 Pa.St. 496; Regina v. Kendall, 1 Ad. & El. (N. S.) 386; Townsend v. McIver, 2 S.C. 44. The award of the writ is an exercise of judicial discretion which cannot be reviewed on appeal. Griffin v. Veil, 56 Mo. 310; Eidermiller v. Kump, 61 Mo. 340; Moody v. Fleming, 4 Ga. 115; Hanel v. Freund, 17 Mo.App. 618. There is nothing prerogative about the writ of mandamus, it is simply an action at law in cases where it is the appropriate remedy. Kentucky v. Denison, 24 How. 66; People v. Lewis, 28 How. Pr. (N. Y.) 159, 470. The proceeding was properly brought against the company itself. High Ext. Leg. Rem., secs. 315 to 322 a, inclusive; sec. 517 a. The statute requires the " corporation" to keep the books in question open at all times for the inspection of stockholders during business hours, for thirty days prior to an election of directors. Russell v. Columbia, 74 Mo. 490; 2 Dill. Mun. Corp., sec. 1027. The service of the. alternative writ was properly made. People v. Pearson, 4 Ill. 274; State v. Jones, 1 Ired. 129. In this case the defendant appeared and pleaded to the merits, thereby waiving his motion to quash the service and all objections as to the service. People v. Pearson, 4 Ill. 274; State v. Jones, 1 Ired. 129; Dunklin Co. v. Clark, 51 Mo. 60; Highley v. Noell, 51 Mo. 145; Ware v. Johnson, 55 Mo. 500; Fuller v. Trustees, 6 Conn. 544; Edwards v. United States, 103 U.S. 471; McBane v. People, 50 Ill. 503; Rex v. Mayor of New York, 5 T. R. 74. The sheriff's return was conclusive evidence of the facts therein recited, and could not be impeached, as was sought to be done by the company, or O'Day in his motion to quash. Heath v. Railroad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316; Sams v. Armstrong, 8 Mo.App. 573; Phillips v. Evans, 64 Mo. 17; Rippstein v. St. Louis, 57 Mo. 86; State v. Sappington, 68 Mo. 454. It was immaterial for what purpose the relator wished to examine the books, for the statute gave him the unqualified right. People v. Throop, 12 Wend. 185; Cotheal v. Brouwer, 5 N.Y. 566; Brouwer v. Cotheal, 10 Barb. 216; Moody v. Fleming, 4 Ga. 115. The stockholder if he wishes may take copies of the books. Cotheal v. Brouwer, 5 N.Y. 562; Brouwer v. Cotheal, 10 Barb. 216; People v. Throop, 12 Wend. 183; People v. Pacific Mail, 50 Barb. 280. The offer to purchase relator's stock was a piece of impertinence. The law gives no railway corporation the right of eminent domain over the stock of its stockholders. State v. McAuliffe, 48 Mo. 113; People v. Ins. Co., 19 Mich. 392; Cockburn v. Bank, 13 La.Ann. 291; State v. Railroad, 2 Cent. Rep. (N. J.)726; Silverthorne v. Railroad, 33 N.J.L. 377.

OPINION

THOMPSON J.

This was a proceeding by mandamus brought by a stockholder of the defendant corporation, to compel the defendant to allow the relator to inspect the books of the corporation which contain the registers and transfers of its stock and the names of its stockholders. The alternative writ was served by the sheriff upon John O'Day, the second vice-president of the defendant corporation.

I. A motion to quash the service of the writ was filed by the respondent, setting up that Mr. O'Day was not its chief executive officer; had no power to control its stock-books or to perform the acts required by the writ; and also that the president and chief executive officer of the defendant was present in the city of St. Louis at the time of the service of the alternative writ. This motion was overruled. As the bill of exceptions does not show that any evidence was tendered in support of its allegations before it was heard and overruled, we need not concern ourselves with the question whether it was well taken.

II. The answer is a very singular pleading. It is, first, in the nature of a plea in abatement, grounded on the impropriety of the service of the alternative writ upon Mr. O'Day, and upon his alleged want of authority to perform the act sought to be compelled. This branch of it need not be further considered for the reason already stated. It is, in the next paragraph, an answer by Mr. O'Day in person. This may be disregarded, because Mr. O'Day is not the respondent in the action. The remaining paragraphs are by the respondent in the trial court.

III. The first is a charge that the relator owns, if any, but ten shares of the stock of the defendant, not exceeding the value of three hundred and seventy-five dollars, which stock was acquired by relator years since for a much less sum; and that, in order that no injustice may be done the relator, the respondent offers to purchase the same, for said sum or such greater sum as the court may order. The fact of this offer having been made in the answer is gravely renewed in the defendant's printed argument in this court. The relator has justly characterized it as impertinent. The relator is not bound either to forfeit his legal rights or to sell his shares to the corporation at their market value. The courts of justice are not going to assist corporations thus to exercise the right of eminent domain over the shares of their own stockholders, to enable such corporations to avoid doing to their stockholders the simple justice which the statute enjoins.

IV. The next paragraph of the answer, which runs in the name of the respondent in the court below, and not in the name of Mr. O'Day, avers in substance that the defendant had freely allowed the relator to inspect its books, and denies the allegation of the alternative writ, that the relator had demanded of the defendant such an inspection. As all the allegations of the answer were traversed, it may be said, touching this allegation, that there was substantial evidence tending to show that, prior to the issuing of the alternative writ, such a demand had been made on the proper officer, and refused.

V. After thus alleging that the relator had never demanded this privilege, the defendant in the next paragraph proceeds to show why it should not be granted. The charge in substance...