State ex rel. Quinn v. Thompson's Malted Food Co.

Barnes, J. The hooks sought to he examined were located in Wisconsin and ivere in the custody of officers of the corporation who resided here. All of the property of the corporation, as well as its principal office, is in Wisconsin. The question before us is whether a resident stockholder is entitled to a writ of mandamus to compel the custodians of the corporate records to submit them to such stockholder for examination for the purpose of ascertaining who the stockholders of the corporation are and what they paid for their stock, good faith being admitted. The circuit court answered the question in the affirmative. The appellants argue that the court erred (1) because the corporation is neither a proper nor a necessary party to the proceeding, and its demurrer should have been sustained in any event; and (2) because there is no authority in law for the examination [674] of the books of a foreign corporation in this state for tbe purpose for which the examination, was sought in this proceeding; 1. While the corporation may not be a necessary party, it is a proper party. It may well be the real party in interest on the defendants’ side of the case. If harm or good flows from the examination sought, the corporation will in all probability be affected. It is also desirable that the corporation should be a party for the protection of the relator. The directors of the corporation might oust its president and secretary during the pendency of the proceeding, or place the books and records sought to be examined in the hands of some other custodians, or send them' out of the state. These things might well tend to hamper the relator and cause him delay and expense. With the corporation before the court and subject to its mandate, the relief sought may be speedily and effectually secured. 2. Appellants concede that, if the defendant corporation was organized under the laws of Wisconsin, the relator would have a right to make the desired examination under sec. 1757, Stats. Sub. 10 of sec. 1770b, Stats., provides: “All foreign corporations and the officers and agents thereof doing business in this state, shall be subjected to all the liabilities and restrictions that are, or may be imposed upon corporations of like character, organized under the laws of this state, and shall have no other or greater powers.” Respondent argues that this statute gives the same right of examination in the case of a foreign corporation that exists where a domestic corporation is involved. The appellants contend that the quoted portion of sec. 1770b was taken verbatim from a statute of Illinois, except that one important word found in the Illinois statute was not included in ours; that the Illinois law subjects foreign corporations to all “the liabilities, restrictions and duties" imposed on domestic corporations of a like character, while our statute subjects the foreign corporation to “the liabilities and restrictions” only [675] imposed upon domestic corporations; that tbe word “duties” is tbe appropriate one to confer suob a right as is here claimed to exist, and that tbe intentional omission of tbe word from our act shows that there was no purpose to confer tbe right which relator is attempting to enforce. The word “liability” has a pretty -broad meaning. It is generally held to cover or include legal responsibility and legal duty. Webst. Dict.; Cent. Diet.; 2 Bouv. Law Dict. 206 (Rawle’s Rev.); 2 Abbott, Law Dict. 38; Anderson, Law Dict. 616; Wood v. Currey, 57 Cal. 208, 209; Piller v. S. P. R. Co. 52 Cal. 42, 44; Heywood v. Shreve, 44 N. J. Law, 94, 104; Joslin v. New Jersey C. S. Co. 36 N. J. Law, 141, 145 ; Benge's Adm’r v. Bowling, 106 Ky. 575, 51 S. W. 151; McElfresh v. Kirkendall, 36 Iowa, 224, 226. Liability is “the state of one who is bound in law and justice to do something which may be enforced by action.” 2 Bouv. Law Dict.; Filler v. S. P. R. Co., supra; Heywood v. Shreve, supra. The legal obligation or responsibility imposed on a domestic corporation by sec. 1757, Stats., is a “liability,” within the usual and ordinary meaning of that word in law and in common usage. There is a duty imposed on the corporation and a corresponding right given to the stockholder which may be enforced by action. This creates - a liability on the part of the corporation. If this be so, then a like obligation is imposed on foreign corporations under sub. 10 of sec. 1770b. The relator is seeking to enforce a clear statutory right and has resorted to the proper remedy. State ex rel. Fire & R. P. C. Co. v. Icke, 136 Wis. 583, 118 N. W. 196; State ex rel. Weingart v. Board, etc. 144 Wis. 516, 521, 129 N. W. 630. We do not wish to be understood as intimating that the relator would not have the same right at common law under the facts of this case which we hold he has by virtue of the statutes referred to. By the Court.- — Order affirmed.