State v. Biedler

• Decision Date: 29 May 1916
• Citation: 99 A. 278,29 Del. 262
• Court: Delaware Superior Court
• Parties: THE STATE OF DELAWARE upon the relation of JOSIAH O. WOLCOTT, Attorney General, v. ASHBY LEE BIEDLER, HENRY C. DUNLAP, WILLIAM J. KEHOE, ROBERT Y. SLATER, ERASMUS B. WAPLES and CHARLES W. SLATER

99 A. 278

29 Del. 262

THE STATE OF DELAWARE upon the relation of JOSIAH O. WOLCOTT, Attorney General, v. ASHBY LEE BIEDLER, HENRY C. DUNLAP, WILLIAM J. KEHOE, ROBERT Y. SLATER, ERASMUS B. WAPLES and CHARLES W. SLATER

Superior Court of Delaware, New Castle County

May 29, 1916

Superior Court for New Castle County.

RULE to show cause why information should not be filed, No. 81 January Term, 1916.

In court in Banc.

PENNEWILL C. J., BOYCE, CONRAD, RICE and HEISEL, J. J., sitting.

Information in the nature of a quo warranto by the State of Delaware upon the relation of Josiah O. Wolcott, Attorney General against Ashby Lee Biedler, Henry C. Dunlap, William J. Kehoe, Robert Y. Slater, Erasmus B. Waples, and Charles W. Slater, with accompanying affidavits and exhibits presented to the court, asking for a rule upon the respondents to show cause why leave should not be granted to file the same. Rule granted. On motion to vacate service of rule to show cause. Granted as to Henry C. Dunlap, Robert Y. Slater, and Charles W. Slater, and denied as to Erasmus B. Waples, and rule as to him made absolute, with leave to file information against him.

It was averred in the information, inter alia:

"That, under the provisions of the general corporation law of the State of Delaware (Rev. Code 1915, c. 65), on or about the ninth day of October, A. D. 1913, Kehoe Stenograph Company was created a corporation of the State of Delaware, and thereafter duly organized with all franchises, privileges and rights of a corporation, and that for a long time prior to, on and after the first day of October, A. D. 1914, Julius Strauss, Alonzo C. McLaughlin and A. G. Walsh, were and are the lawfully elected and duly chosen and duly qualified directors of said corporation, holding office as such until their successors shall be duly elected and qualified, and that notwithstanding the premises, Ashby Lee Biedler, Henry C. Dunlap, William J. Kehoe, Robert Y. Slater, Erasmus B. Waples, and Charles W. Slater have during all the time since the first day of October, A. D. 1914, used and still do use the franchises, offices, privileges and liberties of directors of the said Kehoe Stenograph Company, and during the said time hitherto the said franchises, offices, privileges and liberties of directors of the said company have usurped and still do usurp to the damage and prejudice of the State of Delaware."

The information concluded with the usual prayer for a writ of quo warranto.

The sheriff made return endorsed on the rule:

"Served the within rule personally on Henry C, Dunlap, Robert Y. Slater and Charles W. Slater, on," etc., "and served * * * personally on Erasmus B. Waples, on," etc., "so ans.," etc.

On the return day of the rule, James M. Tunnell, Esq., representing the several persons on whom the rule was personally served, presented a petition to the court, asking leave to appear specially for said persons for the sole purpose of moving to vacate the sheriff's return of service of the rule upon each of said persons, they claiming, as alleged in the petition, privilege and exemption from service of process under the circumstances set out in the several affidavits filed therewith: that is, in substance, each, at the time of the service of the rule, claimed to be directors of the Kehoe Stenograph Company, and also each was present in the state to give testimony for the defendant in the case of Lippman v. Kehoe Stenograph Company, then on a hearing before the Chancellor of the State, in Wilmington.

The facts disclosed by the affidavits of the respondents are more fully stated in the opinion of the court. One of the affidavits filed in opposition to the motion is, in part, as follows:

"The said Robert Y. Slater at the time he was served with process in this proceeding was using the franchises, offices, privileges and liberties of director of the said Kehoe Stenograph Company and during the entire time that the said Robert Y. Slater remained in the State of Delaware he used and continued to use the franchises, offices, privileges and liberties of director of the said Kehoe Stenograph Company, to the great damage and prejudice of the State of Delaware, and much of the testimony given in the said cause of Martin Lippman v. Kehoe Stenograph Company by the said Robert Y. Slater was for the purpose of attempting to show a right on the part of the said Robert Y. Slater to use the offices, privileges and liberties of director of the Kehoe Stenograph Company."

The other affidavits disclose, in substance, the same as to Charles W. Slater and Henry C. Dunlap.

The court considering that the question of law contained in the petition ought to be heard by the court in banc, did, on the joint application of the parties, direct the same to be so heard. It was agreed by and between the parties respectively by and through their counsel respectively that the judgment of the Superior Court entered in pursuance of the opinion of the court in banc should be final.

The question of law raised, was argued before the court in banc, PENNEWILL, C. J., BOYCE, CONRAD, RICE and HEISEL, J. J., sitting.

ARGUMENT IN SUPPORT OF THE MOTION TO VACATE THE SERVICE.

8 Bacon's Abridgement, 158, defines privileges:

"Privilege is an exemption from some duty, burden, or attendance, with which certain persons are indulged, from a supposition of law, that the stations they fill, or the offices they are engaged in, are such as require all their time and care." See note also; also Black's Law Dictionary; North River Steamboat Co. v. Livingston, 1 Hopkins Chancery, 149, 203.

In Poole v. Gould, 1 Hurl & N. 99, which was an application similar to the present, except, in that case the plaintiff was an individual instead of a sovereign state, the court said:

"The rule must be discharged. Without giving encouragement to litigation or oppressive acts, we ought to take care that the service of process is not set aside on slight grounds. Every opportunity ought to be afforded to persons to serve debtors with writs."

In Bunce v. Humphrey, 108 N.E. 95, it was said:

"* * * It is not only a natural right, but it is in derogation of the common natural right which every creditor has to collect his debt by subjecting his debtor to due process of law in any jurisdiction where he may find him. The privilege should therefore not be extended beyond the reason of the rule upon which it is founded."

No reason can be found by me where privilege has been claimed or where privilege has been granted, wherein the king or sovereign state has been the party plaintiff.

The Brooks case, 3 Boyce 1, 79 A. 790, is the sole exception and this point was not raised in that case.

In 8 Bacon's Abridgement 182, it is said: "Where an action is brought by the King, the defendant shall not have privilege."

See, also, 2 Rolles Abr. 274; 17 Viner's Abr. 517; Kirkham v. Whaley, 1 Ld. Raymond 27; In re Doughlass, 2 Q. B. 825, 837; Wharton's Law of Evidence, Sec. 389 (2nd. Ed.).

In Queen v. Seale, 5 El. & Bl. 1, 85 E. C. L. 1; in considering whether an information in the nature of a quo warranto came within the English Common Law procedure of 1852, CROMPTON, J., during the argument, said:

"It will not be argued that Sec. 148 of the Common Law Procedure Act, 1852, includes all criminal proceedings: it will be said, that an information in the nature of a quo warranto has the character of a civil proceeding."

The court in deciding the matter by LORD CAMPBELL, C. J., said:

"* * * The Act was passed, not with a view of varying the law, but for the purpose of altering and regulating the mode of procedure. Quo warranto could not be included, unless all indictments were so. The proceeding is not a civil one: the allowance of inspection does not show that it is."

In Rex v. Archbishop of York, Willes 533, it was held, that under the Statute 4 Anne C. 16 S. 4, two pleas could not be pleaded where the King was a plaintiff. That was an action of quare impedit. State v. Roe, 26 N. J. L. 215.

This proceeding is by the sovereign State of Delaware, inquiring of the defendants by what authority they severally support their claims to the office of director of Kehoe Stenograph Company, a corporation of the State of Delaware.

In Delaware, as held in Brooks v. State, 3 Boyce 1 (36), 79 A. 790, this proceeding retains its prerogative character and is instituted on behalf of the sovereign state, and in such instances the defendant is not entitled to have privilege. But even if defendants were entitled to privilege they must be deemed to have waived the exemption.

The affidavits disclose that the defendants, Robert Y. Slater, Charles W. Slater and Henry C. Dunlap, at the time that they were served with process in this proceeding were using the franchises, offices, privileges and liberties of director of the said Kehoe Stenograph Company and continued so to do during the entire time they remained in the State of Delaware, and that much of the testimony given by them in the Lippman case was for the purpose of attempting to support an alleged right to act as directors of the said Kehoe Stenograph Company. This fact under the broad principle precludes them from claiming any privilege. Shiras in Nichols v. Horton, 14 F. 327, 330-331; Iron Dyke Copper Min. Co. v. Iron Dyke R. Co., 132 F. 208.

The principle running through the case of Mullen v. Sanborn, 25 L. R. A. 721, is the same as the one now advanced by the State of Delaware.

An information in the nature of a quo warranto is the only efficacious and specific remedy to determine disputed questions of title to a public office. It must be remembered that the office of director in a Delaware corporation is a public office; that the unlawful holding of such office constitutes a...