building within the city limits. The ordinance further provided that the party applying for a license to move houses should give a bond in the sum of $1,000, running to the city, conditioned to indemnify it from all damages that might accrue from injury to streets, trees, pavements, telegraph poles, wires, etc., and further provided that "upon execution of said bond, and its approval by the corporation attorney, a license shall be issued, and the said licensed person shall in each and every instance, before removing any building, obtain a permit to do so from the commissioner of public works, stating specifically all the conditions, prescribing the route to be taken, and limiting the time for the removal." Subsequent to the passage of this house movers ordinance, and long prior to the issuing of the permit to appellant, respondent companies were duly authorized by the city council to occupy the streets of the city with poles and wires and to maintain the same for the purpose of furnishing electricity to the city and its inhabitants, and at the time of the issuing of the permit respondents had erected and were maintaining at the corners of the streets along the route designated in the permit certain are lamps and the necessary feed wires and attachments connected therewith. Green, 4 Oush. (Mass.) 433; Williams v. Citizens' Ry. Co., 130 Ind. 71, 29 N. E. 408, 15 L. R. A. 64, 30 Am. St. Rep. 201; Millville Traction Co. v. Goodwin, 53 N. J. Eq. 448, 32 Atl. 263; Keating v. Macdonald, 73 Conn. 125, 46 Atl. 871; Harcourt v. Common Council of Asbury Park, 62 N. J. Law, 158, 40 Atl. 690. Authority to use the streets for the erection of poles and wires, and for moving houses, is vested in the city authorities, and without such authority there is no right. Eureka City v. Wilson, 15 Utah, 53, 48 Pac. 41; Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603. Respondents secured no vested rights to occupy the streets with their wires, poles, and lights, except as provided by the franchise in pursuance of which the same were erected; and appellant acquired no rights in the streets for the purpose of conducting his business of house mover, except as specified and limited by the ordinance and the permit. At the time appellant applied for his permit, respondents were in lawful possession of the streets for the purpose of maintaining the wires and lamps involved in this action, and appellant has no standing to contest that right, unless upon the ground of an equal or prior right by virtue of the ordinance under which he was licensed to do business. The house movers license ordinance simply permits the removal of a building from one quires that, before any licensed house mover shall move any house, he shall give a bond and secure a permit from the commissioner of public works. No absolute right to use the streets is conferred upon those who may take out a license. The ordinance reserves the right of supervision for the protection of public and private property, and the commissioner was vested with authority to prescribe the route and the conditions upon which a permit might be issued. The powers thus delegated to the commissioner are ministerial, and not legislative. 28 Cyc. 277, and cases above cited. Appellant's position in this court is that the qualification in the order for injunction, requiring payment of the expense of adjust-lot to another outside the fire limits, and reing the lamps and wires, was an unauthorized restriction upon his legal rights. The proposition is stated in appellant's brief as follows: "Appellant contends most respectfully that his right to use and occupy the space above the public streets in the lawful performance of his profession as a house mover is coequal and coextensive with the rights of respondents, and antedates them in point of time; that his rights in this regard were fixed and defined by public law at the time respondents accepted their franchise; and that if, under such conditions, respondents so suspended their wires as to constitute an obstruction to this appellant while engaged in lawfully conducting his labors as a house mover, then it becomes the duty of said respondents, at their own expense, to remove said obstructions temporarily whenever the necessities of appellant's business requires such removal." This claim assumes that both parties have the right to occupy the streets for the purpose of conducting their business, subject only to the right of reasonable regulation. Such is not the law. The use of streets for moving houses is an unusual and extraordinary one. Kibbie Telephone Co. v. Landphere, 151 Mich. 309, 115 N. W. 244, 16 L. R. A. (N. S.) 689; N. W. Tele. Exchange Co. v. Anderson, 12 N. D. 585, 98 N. W. 706, 65 L. Appellant stands in this court upon his strict legal right to require respondents to remove their wires at their own expense, upon reasonable notice. In this he is mistaken. His right to use the streets is restricted by the permit, and there is no legal ground for the demand he makes. Whether respondents might have been compelled by the city council to take care of the wires and lamps at their own expense in such case is not involved in this action. The condition upon which the trial court issued the injunction requiring notice of 24 hours and payment of the expense attending the adjustment of the wires and lamps was all that appellant could reasonably expect under the permit, and he has no legal ground for complaint. [Ed. Note.-For other cases, see Death, Cent. the father and mother, then that amount Dig. § 27; Dec. Dig. § 25.*] 2. DEATH (§ 101*)-SETTLEMENT WITH ONE HEIR APPLICATION TO JUDGMENT. must be distributed in equal portions to each, and unless the company is to be given credit for the amount it has already paid to the The proper practice in such case is for the defendant to apply to the trial court and father it will be called upon to pay an have that portion of the fund which would oth- amount in excess of the $5,000 limited by erwise be distributed to the heir with whom statute. If respondent was without remedy settlement was made applied pro tanto in sat-after the rendition of the judgment against isfaction of the judgment. [Ed. Note-For other cases, see Death, Cent. Dig. 88 132-140; Dec. Dig. § 101.*] it, then there would be good reason for receiving evidence at the trial of the settlement in order to limit the amount of the re3. DEATH ($ 99*)-DAMAGES-EXCESSIVENESS. The court did not err in granting a new covery for the benefit of the remaining heir. trial on the ground that amount recovered was But it is the settled rule of this court that excessive. the distribution of the fund recovered in [Ed. Note.-For other cases, see Death, Cent. such an action is entirely within the jurisDig. $$ 125-130; Dec. Dig. § 99.*] diction of the trial court. Mayer v. Mayer, Appeal from District Court, Itasca Coun- 106 Minn. 484, 119 N. W. 217; Aho v. Rety; W. S. McClenahan, Judge. Action by Anna McVeigh, administratrix of John McVeigh, against the Minneapolis & Rainy River Railroad Company. Verdict for plaintiff. From an order granting a new trial, she appeals. Affirmed. public Iron & Steel Company, 104 Minn. 322, 116 N. W. 590; Aho v. Jesmore, 101 Minn. 449, 112 N. W. 538, 10 L. R. A. (N. S.) 998. Under the circumstances, the proper practice is for the company to make application to the trial court in the nature of a supplementary petition, or complaint, setting up the Spear & Stone, for appellant. R. J. Pow- fact that it had settled with the father, and ell, for respondent. The evidence was meager and indefinite as to the amount of pecuniary loss suffered by the parents on account of the death of their son, and we find no abuse of discretion on the part of the trial court in granting a new trial on the ground that the verdict was excessive. make demand for his portion of the fund. Such a course being open to respondent in LEWIS, J. John McVeigh lost his life in this case, the trial court did not commit eran accident while in the employ of respond-ror in refusing to receive evidence of the setent company, and this action was brought tlement at the trial. by his mother, as administratrix, to recover damages under the statute. He left no wife or children, and the next of kin are his father and mother. The answer alleged that prior to the appointment of the administratrix the company had settled with the father of the deceased for the sum of $1.500 for the use and benefit of all those entitled to participate, and that the amount had been received by the father in full satisfaction of all claims and demands on the part of the next of kin. Appellant recovered a verdict of $5,000, and on motion the trial court granted a new trial, upon the ground that the verdict was excessive and for error in law occurring at the trial. Affirmed. STATE ex rel. HUMPHREY v. MONIDA ♣ From the court's memorandum it appears 1. CORPORATIONS (§ 181*)-RIGHT OF STOCK HOLDER TO INSPECT BOOKS-SCOPE OF RIGHT. Under the provisions of section 2869, Rev. Laws 1905, the right of a stockholder to inspect the books of a corporation is not an unthat the information is not sought from mere qualified right, but is subject to the condition curiosity, or for an improper purpose. that the error of law referred to was in eliminating all evidence offered by appellant with reference to the settlement with the father. Respondent undoubtedly proceeded in good faith in making the settlement with the father, and supposed he had authority to bind all the heirs of the deceased. In this respond [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 674-685; Dec. Dig. § 181.*] 2. CORPORATIONS (§ 181*)-RIGHT OF STOCK-] HOLDERS TO EXAMINE BOOKS. The use of the information for the purpose of prosecuting a claim of the stockholder against the corporation is a proper purpose. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 674-685; Dec. Dig. § 181.*] 3. CORPORATIONS (§ 181*)-MANDAMUS (§ 129*) - RIGHT OF STOCKHOLDER ΤΟ EXAMINE BOOKS-PROPER DEMAND-REFUSAL. Evidence examined, and held: (1) The evidence is sufficient to sustain a finding that a proper demand was made by the relator for permission to examine the books of appellant corporation, although the demand was not made at the general offices of the company. (2) The evidence was sufficient to support the finding of the court that the demand was refused. (3) The court did not err in directing a writ of mandamus to issue requiring appellants to permit the relator, or his agent or attorney, other than Mr. Albin, to examine the books of the corporation. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 680; Dec. Dig. § 181; Mandamus, Cent. Dig. § 264; Dec. Dig. § 129.*] Appeal from District Court, Ramsey County; Olin B. Lewis, Judge. Mandamus by the State, on relation of William W. Humphrey, against the Monida & Yellowstone Stage Company and others. From an order granting the writ, defend ants appeal. Affirmed. Jas. R. Hickey, for appellants. Edward B. Graves and Martin H. Albin, for respondent. majority interested in the corporation, who formed Mr. Bradford that the demand had As a conclusion of law the court found: writ of mandamus, which shall provide that "That petitioner is entitled to a peremptory select, other than Martin H. Albin, shall be he, or such attorney or agent as he may allowed to inspect the books, records, and papers of the defendant the Monida & Yelin which are kept the minutes of the meetlowstone Stage Company, including the books LEWIS, J. The relator, a stockholder in appellant company, claiming to have been refused the privilege of examining the books of the corporation, petitioned the district court for a peremptory writ of mandamus to enforce his demand. The answer to the petition and alternative writ alleged that the information desired was not for any proper use of relator as a stockholder; that the relator and one of his attorneys, Mr. Albin, had entered into a conspiracy to injure appellant corporation, and desired the informa-ings of the stockholders and of the directors, tion for the purpose of harassing and annoying appellant, and to aid its competitor in business. and the books in which are kept the records of the stock issued and outstanding, and all books of account and all other papers of the company, save those which have to do with the so-called party and tourist business, and that he or they be given at all reasonable times access to such books, records, and papers, for the purpose of making such examination from day to day, during business hours, until such examination shall have been completed, and that in the course of such inspection petitioner may be accompanied by and have the assistance of a stenographer and clerk other than said Martin H. Albin, for the purpose of making such abstracts and copies from said books, records, and papers as said petitioner may deem nec A large amount of evidence was taken with reference to the history of the corporation and the relations of the various parties. The court found that the capital stock of the company was $100,000, divided into 1,000 shares, of $100 each; that the relator was the owner of at least 5 shares; that appellant F. J. Haynes was president, and owner of a majority of the stock, and that C. M. Bend was secretary and treasurer of the company; that Martin H. Albin became connected with the corporation in 1900, and continued a director and manager until 1905, and at the time these proceedings were commenced was not a stockholder, had no finan-essary. cial interest in the company, and the court found: "During the period said Martin H. Albin was an officer and stockholder in said company, his management of its affairs and business policies were not satisfactory to the Such examination to be conducted with all reasonable dispatch consistent with the proper management and conduct of the affairs of said defendant, and shall not be unduly prolonged or vexatiously delayed. Let judgment be entered accordingly." Appellants seek to reverse the order of the | although the court would have been warranttrial court upon three principal grounds: (1) That a proper demand by the relator for an opportunity to inspect the books was not made at the proper place, viz., at the office of the corporation. (2) That if a proper demand was made by the relator, or his attorneys, there was no refusal to comply with it in so far as the relator was personally concerned. (3) That in any event the information was desired for the use and benefit of relator's attorney, Martin H. Albin, with the intention of using it for an ulterior purpose, to the detriment of the corporation. 1. The offices of the corporation were located in the National German American Bank Building, in the city of St. Paul, and this was known to the relator and his attorney. The first demand, in March, 1908, for an inspection of the books, was made upon Mr. Bend, the secretary and treasurer, but not at the office of the corporation. The second demand was made personally upon the president, the secretary, and Mr. Hickey, the attorney, in the city of St. Paul, but not at the offices of the company. According to the evidence, the books and papers of the corporation were kept in a private safe of the president, at his private office on the corner of Selby and Virginia avenues. It is evident that both of the officers and the attorney, Mr. Hickey, were fully informed as to the purpose of the demand, and that it was not refused for the reason that it was not made at a proper time or at the proper place, and the objection is not well taken. 2. We find evidence in the record tending to show that the refusal was not absolute and unqualified at the time the first demand was made in March by Mr. Bradford and Mr. Albin. The refusal was coupled with the statement that so far as the relator personally, or his attorneys, Messrs. Bradford & Morphy, were concerned, they were at liberty to examine the books and secure whatever information they desired, with the understanding, however, that such information should not be furnished to Mr. Albin. With reference to this first demand, the findings merely state that the matter was referred to Attorney Hickey, and the court did not otherwise specify that the request was denied. Messrs. Bradford & Morphy appear to have then retired from the case, and on April 2d Mr. Graves and Mr. Albin appeared as attorneys for the relator, and renewed the demand in the form of a letter, addressed to the two officers and to the corporation, and personal demand was also made on the two officers. The evidence with reference to this demand is very indefinite. From a reading of the record we are impressed with the idea that relator's attorneys understood that the information was withheld, for the reason that in the opinion of the officers of the company it was de sired for the purpose of turning it over to ed in finding that there had been no absolute refusal to the relator of an inspection of the books, and the order allowing the writ might have been refused upon that ground, the court was of opinion that the relator and his attorneys were justified, by the conduct of the officers and their attorney in assuming that the refusal was intended to be absolute, and found accordingly. There is evidence reasonably tending to support the views of the court, and the finding must stand. 3. It is apparent that on account of Mr. Albin's previous conduct, and his controversies and litigation with the corporation during the years of 1906 and 1907, the officers were justified in refusing access to their books by Mr. Albin personally and as the attorney of relator. The trial court recog nized the justice of this position and attempted to guard against it in the order for the writ. But, so far as the relator personally is concerned, he stands upon a different ground. He claims to have had a valid claim against the company for the value of a large block of stock, of which he had been deprived, and the evidence justified the trial court in concluding that the information was desired by him for the bona fide purpose of properly prosecuting his claim against the company. It remains to be considered whether under these circumstances the relator was entitled to the aid of the writ of mandamus. The common-law right of a stockholder of a corporation to examine its books and accounts is not an absolute right, and will not be enforced by a writ of mandamus, when the object is curiosity, speculation, or vexation. Varney v. Baker, 194 Mass. 239, 80 N. E. 524. And the writ of mandamus to enforce the right may issue, in the sound discretion of the court, with suitable safeguards to protect the interests of all concerned. In re Steinway, 159 N. Y. 250, 53 N. E. 1103, 45 L. R. A. 461. In some jurisdictions it has been held that it must appear upon the face of the petition for the writ that the application is sought in good faith and for a specific purpose. Garcin v. Trenton Rubber Mfg. Co. (N. J. Sup.) 60 Atl. 1098; Bruning v. Hoboken Printing Mfg. Co., 67 N. J. Law, 119, 50 Atl. 906. The writ will be refused when the applicant shows by his own testimony a lack of good faith. Bevier v. U. S. Wood Preserving Co. (N. J. Sup.) 69 Atl. 1008. In the case of People of the State of New York ex rel. Callanan v. Keeseville et al., 106 App. Div. 349, 94 N. Y. Supp. 555, attention is called to the difference between the right of a stockholder to examine the books of a corporation under the common law and the absolute right guaranteed by statute. With reference to the former it was held that, with respect to the general business books of a corporation, an inspection by unless the applicant seeks to learn something which he has the right to know for his protection, and his application is made in good faith and not for the purpose of injuring or annoying the corporation. Whether the request should have been complied with on demand rests in the sound discretion of the court. But where the statute is mandatory, and gives a stockholder the absolute right to examine the stockbooks of the corporation, then it is immaterial whether the application be made in good faith, or for what purpose the information is desired. Such statutes have generally been strictly construed. Johnson v. Langdon, 135 Cal. 624, 67 Pac. 1050, 87 Am. St. Rep. 156; Ellsworth v. Dorwart, 95 Iowa, 108, 63 N. W. 588, 58 Am. St. Rep. 427; Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 56 N. E. 1033, 48 L. R. A. 732, 78 Am. St. Rep. 707. But in Illinois a statute conferring the right of inspection, without qualification, except as to time, was held subject to the implied limitation that it should not be exercised from idle curiosity, or for unlawful purposes. Stone v. Kellogg, 165 Ill. 192, 46 N. E. 222, 56 Am. St. Rep. 240. In Guthrie v. Harkness, 190 U. S. 148, 26 Sup. Ct. 4, 50 L. Ed. 130, the federal Supreme Court adopted the rule, as stated by Morawetz on Corporations, § 473, that the decisive weight of American authorities recognize the common-law right of the shareholder for proper purposes and under reasonable regulations to inspect the books of the corporation of which he is a member. Instructive notes will be found on this subject in connection with the reports of Weihenmayer v. Bitner (Md.) 45 L. R. A. 446, and Kuhbach v. Irving Cut Glass Company (Pa.) 20 L. R. A. (N. S.) 185; also Current Law, vol. 5, p. 834. took occasion to rewrite the section, and to specify that the time should be reasonable and that the purpose of inspection should be proper. The right of inspection is not an absolute one, and may be refused when the information is not sought in good faith, or is to be used to the detriment of the corporation. But in this instance the petitioner showed that he was a stockholder, and was unable to secure information as to the financial standing of the company and method of conducting the business. This was sufficient to make a prima facie case of good faith. The order appealed from enables the relator, or any agent of his, other than Mr. Albin, to have access to the books, but no provision was made to prevent the information from being communicated to Mr. Albin. Although the language of the order is somewhat indefinite, it should not be assumed that it was the intention of the court to authorize the representative, or agent, who should be selected by the relator, to furnish the information to Mr. Albin. The court restricted the examination so as not to include such books, papers, and record as pertained to the so-called "party and tourist business,” and also denied the right of Mr. Albin to examine the books as the attorney of relator. This seems to imply that Mr. Albin was not to be given the information sought, and we are not warranted in assuming that the court did not intend to restrict the examination to the legitimate purposes of the relator in prosecuting his personal claim against the corporation. No request was made to modify the order, and if it is liable to be misunderstood, and the rights of appellant are not clearly defined, the remedy lies with the trial court. It is therefore ordered that the order appealed from be affirmed, without prejudice to appellants to move for a modification of the order not inconsistent with the views herein expressed. JAGGARD, J., took no part. A brief reference to the Minnesota statutes will be sufficient to disclose the proper principles which should govern the courts of this state in the use of the writ of mandamus to enforce the right of inspection of the books of a corporation by a stockholder. Section 2800, Gen. St. 1894, provided that the books and records of a corporation should at all times be open to the inspection of any and all stockholders. This section was carried forward from the Statutes of 1866, and we are not aware that it has ever been un-(Supreme Court of Minnesota. Feb. 11, 1910.) HOLMES v. IGO et al. (Syllabus by the Court.) 1. JUSTICES OF THE PEACE (§ 166*)—APPEALAFFIRMANCE UPON DISMISSAL. Section 3991, Rev. Laws 1905, authorizing an affirmance of a judgment of a justice of the court is dismissed for any cause, applies to propeace when an appeal therefrom to the district ceedings in the municipal court of the city of St. Paul. der consideration by the courts of this state. Whether it was any more than declaratory of the common law is not now of importance, since it was superseded by section 2869, Revised Laws 1905, which reads: "All such books and records shall at all times and for all proper purposes be open to the inspection of every stockholder." The writers of the Code probably recognized that there was some uncertainty as to the meaning of the statute of 1894, that the courts of the several states were not unanimous in the conWhen such an appeal to the municipal court struction of similar statutory provisions, and is for any cause dismissed, the court may, un [Ed. Note.-For other cases, see Justices of the Peace, Dec. Dig. § 166.*] 2. JUSTICES OF THE PEACE (§ 166*)-APPEALAFFIRMANCE UPON DISMISSAL. |