Cotheal et al., executors, v. Brouwer

Cotheal et al., executors, v. Brouwer. Inspection of corporation books. Every stockholder in a corporation has a right, during thirty clays prior to the annual election of directors, to examine the transfer books of the company, and to take a copy of the names of the several stockholders ; a refusal to permit it subjects the officer having charge of the books to the penalty of $250, under the statute. (1 E. S. 601, g 1.) Brouwer v. Cotheal, 10 Barb. 216 ; s. o. 5 if. Y. Leg. Ohs. 175, affirmed. Appeal from the general term of the Supreme Court, in the first district, where'a judgment of the Superior Court of the city of New York, entered on a verdict in favor of the plaintiff, had been affirmed on writ of error. (Reported below, 10 Barb. 216; and in the superior court, 5 N. Y. Leg. Obs. 175.) This was an action of debt, by Henry Cotheal, a stockholder in the East River Mutual Insurance Company, against John Brouwer, the president of the company, to recover the penalty of $250 imposed by the statute (1 R. S. 601, § 1) for refusing to exhibit the books of the corporation and to submit them to examination. The original plaintiff died, after, verdict and before judgment, arid his executors were substituted parties. The statute provides, that “the book or books of any incorporated company in this state, in which the transfer of stock in any stock company shall be registered, and the books containing the names of the stockholders in any such company, shall, at all reasonable times, during the usual hours of transacting business, be open to the examination of every stockholder of such company, for thirty clays previous to any election of directors; and if any officer having charge of. such books shall, upon demand by any stockholder, refuse or neglect to exhibit such books, or submit them for examination, he shall, for every such offence, forfeit the sum of two hundred and fifty dollars, the one moiety thereof to the use of the people of this state, and the other moiety to him who will sue for the samé; to be recovered, by action of debt, in any court of record, with the costs of such suit.” On the trial, before Oakley, J., it was shown, that an election for directors of said company was appointed for the 11th May 1846; that the defendant was president of the company, and had charge of the books thereof; that on the 29th April, the plaintiff, who was a stockholder, applied at the office of the company to see the books containing the transfers of stock, and the names of the stockholders. They were shown him, and he commenced copying, when the defendant closed the books, saying, that the plaintiff had no right to see any but his own name. On the next day, the plaintiff again called, and the books Were handed to him, but the defendant refused to let him take memoranda, and he was only allowed to look at his own name. learne<l judge charged the jury, that a stockholder had a right not only to inspect the books containing the names of the stockholders, but to take memoranda or copies of the same, and that the defendant, by refusing to permit this, had incurred the penalty prescribed by the act. To which, the defendant’s counsel excepted. There was a verdict for the plaintiff for the penalty of $250, and the court, at general term, denied a motion for a new trial, and entered judgment on the verdict.-(5 N. Y. Leg. Obs. 175.) And this judgment having been affirmed by the supreme court, on writ of error (10 Barb. 216), the defendant took this appeal. Dillon, for the appellant. Noyes, for the respondent. [MAJORITY — *Gaedinee. J. Paige, J.] *Gaedinee. J. This action was brought under, and involves a construction of, the first sec-fcion of the statute, entitled “special provisions relating to certain corporations,” to recover the penalty there prescribed, of the defendant, for withholding the books of the corporation from the inspection and examination of the testator, -who was a stockholder therein. That section provides, that the book or books of any incorporated company of the state, in which the transfer of stock shall be registered, and the books containing the names of the stockholders, shall, at all reasonable times, during the usual hours of transacting business, be open for the examination of every stockholder, for thirty days previous to the election of directors, and if any officer having charge of such books shall, upon demand by any stockholder, refuse or neglect *to exhibit said books, or submit them to examination as aforesaid, he shall forfeit, for every offence, $250, one-half to the people, the other to him who will sue for the same, &c. It was proved on the trial, or evidence was given tending to prove, that the defendant had the custody of the books of this corporation; that the plaintiff’s testator was a stockholder; that within the thirty days mentioned in the act, he requested that he might be permitted to examine and take from the register, a list of the stockholders ; that the defendant was willing that he should examine the books, but refused to permit him to make a list of the stockholders, or make any memorandum from the books of the corporation. The judge charged, that the plaintiff, as a stockholder, had a right, not only to inspect the books containing the names of the stockholders, but to take copies of the names, and that by refusing to permit the plaintiff to do this, the defendant incurred the penalty. I think, that the charge of the learned judge was correct. The defendant was bound to submit the register to the examination of the plaintiff’s testator, during the usual hours for the transaction of business; his refusal was not put upon the ground, that the examination was for an unreasonable time, but for an unreasonable purpose, namely, to take a copy of the names of the stockholders The officer having the custody of the books is not constituted, by the act, a judge of the motives of the stockholder in making his inspection, or of the precise manner in which it shall be conducted; nor of the purpose which the information thus obtained shall be made to subserve (12-Wend. 183). The statute confers on each stockholder the right to examine, and it does not authorize the custodian to close the books, because the stockholder, in the progress of his examination, may make a memorandum to aid his memory, either with a view to secure his own rights, or to the proper execution of his duty at an approaching election of officers. The defendant, by his conduct, said to the plaintiff, substantially, *“You, as a stockholder, may inspect the books, but you shall not, by any memorandum, make the information they contain available.” The judgment of the supreme court should, I think, be affirmed. Paige, J. I think, that the charge of the judge who tried this cause was correct. The statute in question (1 R. S. 601, § 1) gave the plaintiff, as a stockholder of the East River Mutual Insurance Company, the right, not only to inspect the books containing the names of the stockholders, but also to take mmnoranda or copies of such names. The statute gives the right to all stockholders of incorporated companies, at all reasonable times, and for thirty days previous to any election of directors, to examine the books containing the transfers of stock, and the names of the stockholders. At the election of directors, the transfer-books of the company are evidence of the stock held in the company. (1 it. S, 604, § 6.) Every stockholder has a right to the information to be derived from these books, to enable him to ascertain who are qualified voters, and to confer with all such in relation to the election of directors. The object of the statute in requiring the officers of the company to exhibit .the books to the stockholders for examination, was, undoubtedly, to enable them to obtain information which the books could afford for such purpose. Unless the stockholder is permitted to take memoranda from the books, or copies of the names of the stockholders, the plain object of the statutory provision would be defeated. A penal law is not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied, as to narrow the words of the statute to the exclusion of cases which the words, in their ordinary signification, or in that sense in which the legislature obviously used them, would comprehend. (5 Wheat. 76, per Marshall, C. J.) But the statute under consideration, although penal as to the defendant, *is beneficial generally, and should, therefore, be equitably construed. (13 Johns. 497.) I think, *- the sense in which the legislature used the words of this statute, justifies the construction given to it in the charge of the judge. The judgment of the supreme court should be affirmed. Judgment affirmed. American Fur Co. v. United States, 2 Pet. 358; United States v. Morris, 14 Ibid. 464; United States v. Winn, 3 Sum. 209; The Enterprise, 1 Paine 32. A penal statute is not to be so strictly construed, as entirely to defeat its obiect: Bartolett v. Ackey, 38 Penn. St. 273. It is well settled, that a statute made for the good of the public, though penal in its character, is to receive an equitable construction. People v. Bartow, 6 Cow. 293. per Woodworth, J. And see United States v. Hartwell, 6 Wall. 385.