proper remedy in many cases to enforce rights of stockholders or members of corporations. Thus, as we shall see in another chapter, mandamus will lie against a corporation to compel it to permit a stockholder or member to inspect its books,51 or to compel it to restore to the privileges and rights of membership or office one who has been wrongfully excluded or disfranchised.52 A duty imposed upon a corporation by statute or its corporate charter 53 or a duty incumbent on it as a public service corporation or common carrier,54 may be en 51 People v. Pacific Mail Steamship Co., 50 Barb. (N. Y.) 280. See also Chapter 46, supra. 52 Exclusion of members. See Medical & Surgical Society v. Weatherly, 75 Ala. 248; State v. Georgia Medical Society, 38 Ga. 608, 95 Am. Dec. 408. Mandamus lies to restore to office a trustee expelled from a charitable corporation. Fuller V. Plainfield Academic School, 6 Conn. 532. 53 To compel delivery of the property of an incorporated academy and the compelling of the surrender of the corporate offices to the trustees entitled thereto. Ward v. Sasscer, 98 Md. 281, 57 Atl. 208. To compel it to clear out certain ditches where this duty is laid upon the corporation by its charter. Lock V. Repaupo Meadow Co. (N. J. L.), 57 Atl. 423. To discharge the liabilities of a company purchased, the statute making that a condition of the purchase. Township of Grosse Pointe v. Detroit & L. St. C. Ry., 130 Mich. 363, 90 N. W. 42. To compel the company to do paving where it has availed itself of the privilege granted on that condition. Mayor, etc., of Borough of Rutherford v. Hudson River Traction Co. (N. J. L.), 63 Atl. 84. See also Davidson v. Cannabis Mfg. Co., 113 N. Y. App. Div. 664, 99 N. Y. Supp. 1018, San Antonio Traction Co. v. Altgelt (Tex. Civ. App.), 81 S. W. 106. To grant a petitioner certain space in its subway ducts. Matter of Long Acre Elec. Light & Power Co., 51 N. Y. Misc. 407, 101 N. Y. Supp. 460. To compel restoration of highway to condition for traffic. Town of Mason v. Ohio River R. Co., 51 W. Va. 183, 41 S. E. 418. To require laying of tracks to conform to a crossing. Houston & T. C. R. Co. v. Dallas (Tex. Civ. App.), 78 S. W. 525. 54 A public service water corporation may be required by mandamus brought by an individual to supply water to such individual. The court said: "Mandamus lies to enforce the performance of public duties. It does not lie at the suit of an individual for the enforcement of those rights which he holds in common with the public at large, but it does lie when his personal and particular rights have been invaded beyond those that he enjoys as a part of the public, and that are common to everyone. Robbins v. Bangor R. & Elec. Co., 100 Me. 496, 1 L. R. A. (N. S.) 963, 62 Atl. 136. It will also lie to furnish a citizen with private service by telephone. That public toll stations exist whereat the applicant might transact his business is an insufficient defense to the company. State v. Kinloch Tel. Co., 93 Mo. App. 349, 67 S. W. 684. See also Crouch v. Arnett, 71 Kan. 49, 79 Pac. 1086. Where the supply furnished under contract with a water company is insufficient, the proper remedy of the forced and performance compelled by mandamus; but the duty must be one imposed by law, and not by contract or ordinance lacking the force of law.55 § 2938. Statutory remedies and special or summary proceedings. As a general rule, corporations are entitled, to the same extent as a natural person, to remedies provided by statute, though they may not be expressly mentioned in the statute, provided they are within its reason and purpose, for in such a case, as we have seen, the word "person" or other general term in the statute is to be construed as including corporations.56 Thus, it has been held that a corporation municipality is, in such case, by proceedings to compel performance. Troy Water Co. v. Borough of Troy, 200 Pa. 453, 50 Atl. 259. To compel furnishing of gas at reasonable rates to the city where the supply has not yet been commenced, or, if the supply has been commenced, a suit in equity may be maintained to enjoin the corporation from ceasing a supply which the corporation is then furnishing. Public Service Corporation V. American Lighting Co., 67 N. J. Eq. 122, 57 Atl. 482. Upon refusal by a common carrier to perform such duty, the performance thereof may be enforced by mandamus at the instance of a private party in matters in which the party has a special interest. Southern Exp. Co. v. Rose Co., 124 Ga. 581, 5 L. R. A. (N. S.) 619, 53 S. E. 185. To compel operation as ordered by railroad commission. People v. Brooklyn Heights R. Co., 172 N. Y. 90, 64 N. E. 788. To compel switching of cars to a private track. Mystic Milling Co. v. Chicago, M. & St. P. R. Co., 131 Iowa 10, 107 N. W. 943. A telephone company cannot be required by mandamus or otherwise to install a telephone to be used for the furtherance of immoral purposes. No one could be compelled to aid an unlawful undertaking. Godwin v. Carolina Telephone & Telegraph Co., 136 IV Priv. Corp.-56 N. C. 258, 67 L. R. A. 251, 103 Am. St. Rep. 941, 1 Ann. Cas. 203, 48 S. E. 636. See, to the same effect, Cullen v. New York Tel. Co., 106 N. Y. App. Div. 250, 94 N. Y. Supp. 290. 55 Where the ordinances of a municipality are without legislative force, the assent of a street railway company to give transfers as therein provided will not sustain a writ of mandamus at the instance of the municipality to enforce the provisions of the ordinance when the corporation has later refused to comply therewith. The court said: "Mandamus is not the appropriate remedy for enforcing private rights growing out of contract.'' Mayor, etc., of City of Newark v. North Jersey St. Ry. Co. (N. J. L.), 62 Atl. 1003. Where an ordinance grants to a railroad the right to cross a street on condition that it makes safe crossings and there exists a statute of the state making substantially similar provision, the ordinance may be enforced by mandamus. Vandalia R. Co. v. State, 166 Ind. 219, 117 Am. St. Rep. 370, 76 N. E. 980. Not allowed to compel irrigation supply. Perrine v. San Jacinto Valley Water Co., 4 Cal. App. 376, 88 Pac. 293. 56 See supra. 4243 $ 54, supra, also § 2928, i may proceed against a debtor under the statutes giving a remedy by way of attachment or garnishment; 57 that it may file a petition under the bankruptcy law,58 enforce a bond or note by a summary petition and summons,59 or maintain a suit to quiet title to land,60 or an action. of "book account." 61 And it was held that a corporation might sue in the United States Court of Claims under the Abandoned and Captured Property Act of Congress, although not mentioned therein, as the remedy thereby given was not intended to be limited to natural persons.62 Of course, this rule does not apply where it appears from the object of the statute or the nature of the remedy that the legislature could not have intended it to apply to corporations, 63 as where a remedy is given to creditors, stockholders or other directors against wrongdoing directors.64 Eminent domain proceedings under delegated power of the state are usually brought by corporations.65 In like manner, remedies given by statute will lie against corporations, though they may not be expressly mentioned in the statute, if they are within its reason and purpose. For example, where a statute gives a right of action for death caused by the wrongful act or neglect. of another, such an action may be maintained against railroad companies and other corporations.66 Corporations may also be proceeded 57 Planters' & Merchants' Bank of Mobile v. Andrews, 8 Port. (Ala.) 404; Bank of Augusta v. Conrey, 28 Miss. 667; Trenton Banking Co. v. Haverstick, 11 N. J. L. 171; Union Bank V. United States Bank, 4 Humph. (Tenn.) 369. The fact that the statute requires an affidavit, and that a corporation, in the nature of things, cannot take an oath, does not render the statute inapplicable to corporations, for the affidavit may be made by an officer of the corporation. See the cases above cited. See also chapter on Attachment and Garnishment, infra. 58 Ex parte Bank of England, 1 Swanst. 10, and see also chapter on Bankruptcy, infra. 59 The statute giving the remedy to "any person" includes corporations. Kentucky Ins. Co. v. Hawkins, 7 Ky. (4 Bibb) 470. 60 Proprietors of Jeffries Neck Pasture v. Inhabitants of Ipswich, 153 Mass. 42, 26 N. E. 239. 61 Vermont Mut. Fire Ins. Co. v. Cummings, 11 Vt. 503. 62 United States v. Home Ins. Co., 22 Wall. (U. S.) 99, 22 L. Ed. 816. 63 Yonge v. Mobile & O. R. Co., 31 Ala. 422. That a corporation cannot sue under a statute as a common informer, see 1 Kyd, Corporations, 218; Weavers' Co. v. Forrest, 2 Str. 1241. 64 The statutory action under Code Civ. Proc. § 1781, is against directors only and cannot lie against the corporation. Jacobs v. Mexican Sugar Refining Co., 104 N. Y. App. Div. 242, 93 N. Y. Supp. 776. 65 Eminent domain proceedings in general, see Chapter 36, supra. 66 United States. Fidelity Insurance, Trust & Safe Deposit Co. v. Norfolk & W. R. Co., 114 Fed. 389. Georgia. Southwestern R. Co. v. Paulk, 24 Ga. 356. Iowa. Donaldson v. Mississippi & M. R. Co., 18 Iowa 280, 87 Am. Dec. 391. [§ 2938 against under statutes allowing attachment; 67 and by the weight of authority they may be summoned and compelled to make disclosure as garnishee or trustee under the statutes relating to garnishment and trustee process, though there may be no express provision as to corporations in the statute 68 and a summary proceeding by a landlord for recovery of possession of the demised premises will lie against a corporation notwithstanding a provision for notice to quit and demand of rent on "the person" owing it.69 Statutory actions by the attorney general, by other directors, by stockholders, by creditors, or by receivers for acts of mismanagement or wrongdoing by the officers are given in some states,70 and various proceedings, often in the nature of certiorari or writ of review, are given to courts based on orders and decisions of public utility commissions and other like regulative boards.71 A corporation is also amenable to punishment for contempt as will be shown in a succeeding chapter.72 Whether a given remedy is applicable prospectively to future cor New Jersey. Kane v. Fillmore Avenue Bapt. Church, 72 N. J. L. 442, 60 Atl. 1099.. Rhode Island. Chase v. American Steamboat Co., 10 R. I. 79, aff'd 16 Wall. (U. S.) 522, 21 L. Ed. 369. Texas. Fleming v. Texas Loan Agency, 87 Tex. 238, 26 L. R. A. 250, 27 S. W. 126. See See also chapter on Torts, infra. 67 See generally chapter on Attachment and Garnishment, infra. also the following: Breene v. Merchants' & Mechanics' Bank, 11 Colo. 97, 17 Pac. 280; South Carolina R. Co. v. McDonald, 5 Ga. 531; Bushel v. Commonwealth Ins. Co., 15 Serg. & R. (Pa.) 173; Union Bank v. United States Bank, 4 Humph. (Tenn.) 369. 68 See also chapter on Attachment and Garnishment, infra. And see the following cases: Connecticut. Knox v. Protection Ins. Co., 9 Conn. 430, 25 Am. Dec. 33. Iowa. Taylor v. Burlington & M. River R. Co., 5 Iowa 114. Maryland. Boyd v. Chesapeake & O. Canal Co., 17 Md. 195, 79 Am. Dec. 646. Missouri. St. Louis Perpetual Ins. Co. v. Cohen, 9 Mo. 421. New Hampshire. Libby v. Hodgdon, 9 N. H. 394. Pennsylvania. Franklin Fire Ins. Co. v. West, 8 Watts & S. 350; Boyle v. Franklin Fire Ins. Co., 7 Watts & S. 76. Virginia. Baltimore & O. R. Co. v. Gallahue's Adm'rs, 12 Gratt. 655, 65 Am. Dec. 254. Contra, Holland v. Leslie, 2 Harr. (Del.) 306; Union Turnpike Road v. Jenkins, 2 Mass. 37. 69 Facts Pub. Co. v. Felton, 52 N. J. L. 161, 19 Atl. 123. The statutes creating this remedy should be carefully consulted, however, lest there be some other provision rendering it inapplicable to a corporation. 70 See Chapter 42, supra, and chapter on Stock and Stockholders, subd. Remedies of Stockholders, etc., infra. 71 See chapter on Governmental Regulations, infra. 72 See chapter on Contempt, supra. And see also Golden Gate Hydraulic Const. Min. Co. v. Superior Cort, 65 Cal. 187, 3 Pac. 628. porations only, or presently to existing corporations as well, is a question of legislative intent.73 It is sometimes enacted that a corporation shall be entitled or subjected to a statutory remedy already conferred on another corporation or class of corporations or natural persons, reference being made generally to other statutes for a description of such remedy. When this is the case the remedy as defined by such other statute without regard to amendments or other legislative change will ordinarily be intended,74 but, of course, this will not be true if it appears that the intention was to include amendments as well. None but the questions contemplated can be litigated in a statutory proceeding, and if others are to be investigated another remedy must be chosen appropriate thereto,75 nor can such a remedy be extended to a subject-matter not embraced in its terms, though similar in character.76 Such remedies have been held not to be a part of the corporate franchise, though given in the charter; hence they are subject to amendment or repeal." A statutory remedy may be either legal or equitable in nature.78 Statutory remedies are not always exclusive. A corporation may 73 A statutory remedy of forfeiture and distribution for nonpayment of a judgment for space of one year was held prospective and inoperative on existing corporations. Aurora & Laughery Turnpike Co. v. Holthouse, 7 Ind. 59. 74 A statutory proceeding given in the charter as that prescribed in the "Railroad Act," held to refer to the existing railroad act and not a subsequent distinct one though with similar provisions. Spring Valley Water Works v. San Francisco, 22 Cal. 434. It was a common practice in the days of special charters to give the particular corporation the same remedy which another corporation had been given, referring to its charter, and especially was this true of the right and the procedure by which the power of eminent domain was to be exercised. In the case last cited the power of eminent domain as exercised by railroad companies was extended to a water company. 75 A statutory taxpayer's bill to investigate whether state indorsed bonds were sold below 90 cents on the dollar must be limited to that issue, and will not try other questions. Jones v. Macon & B. R. Co., 39 Ga. 138. 76 A statutory proceeding by "notice" on paper payable at bank held not to apply to paper payable at a branch office of deposit and discount. Bank of State v. Bush, Walk. (Miss.) 265. 77 A charter mode of summary process for recovery on notes is no part of the franchise of a chartered bank. Bank of Columbia v. Okely, 4 Wheat. (U. S.) 235, 4 L. Ed. 559. 78 The statutory suit against the corporation and its stockholders for a debt left unpaid when it ceased business is equitable. Tabor v. Goss & Phillips Mfg. Co., 11 Colo. 419, 18 Pac. 537. As to nature of proceedings against officers or stockholders based on debts of the corporation, see also Chapter 42, supra, and chapter on Stock and Stockholders, subd. Remedies of Creditors, infra. |