
    State ex rel. v. Carpenter et al.
    
      Corporations — Remedy of Subscriber Entitled to Stock.
    
    When the proper officers of a private corporation organized for profit, refuse, on demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damages, or to enforce the issue and delivery of such certificate, in equity, either of which he may pursue, at his election. Mandamus is not the proper remedy.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Ashtabula county.
    The case is stated in the opinion.
    
      Northway & Fitch, and Tracy Barnum, for plaintiff in error.
    We claim, from the facts found, that having subscribed for 310 shares of the capital stock, the relators were, and are entitled to a peremptory mandamus to compel the certificate to he issued.
    1. We have no other adequate remedy, either in law or in equity.
    2. The statute, section 6741, provides in express terms exactly for this case.
    3. Section 3254, of the Revised Statutes, provides: “Stockholders shall be entitled to receive certificates of their paid up stock in the company; and the president and secretary of the company shall on demand, execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. ” Dutten v. Vil, 42 Ohio St., 217; 1 C. C. R., 127; Freon v. Carriage Co., 42 Ohio St., 30; Norris v. Irish Land Co., 92 Eng. Com. Law, 511; Helm v. Swiggett, 12 Ind., 194; Kentucky v. Dennison, 24 Howard (U. S.), 66; State v. McIver, 2 S. C., 25.
    
      George A. Groot, for defendants in error.
    The right to have a writ of mandamus is a rig’ht conferred by statute, and is specially provided for. (See Title IV, Chap. 2, Revised Statutes.)
    There is nothing peculiar about this stock, as shown by the pleadings, and there is nothing to indicate that the relators could not obtain entire satisfaction in the ordinary course of the law, without resorting to this extraordinary remedy. If the stock certificates were actually in existence, properly executed, and the legal title was in the relators, and were held by these defendants, it is plain that they could recover the possession of the specific certificates in an action in replevin, or have a judgment for their value, if possession could not be obtained.
    
      A court will not issue a peremptory writ of mandamus unless it plainly appears that the relators do not have an adequate- remedy in the ordinary course of the law, and if the court should do such a thing, it would be a clear violation of the statute. Freon v. Carriage Co., 42 Ohio St., 30.
    "Was it the intention of the legislature to authorize the creation of corporations for profit, and then give to such companies rights that are not conferred upon an individual in respect to their obligations? There never was any such intention to make such distinction. The relators in the case at bar have the same rights and remedies ag’ainst this company as they would have if the company was an individual instead of a corporation.
    The purchasing of shares of stock in a private corporation for profit, gives the purchaser no more rights than the purchaser of any other kind of property would have against the person from whom he had purchased.
    In this case the public is in no sense interested; it is a matter of no public concern, it is simply a controversy between the company and the relators, and the court will not use this extraordinary writ for the purpose of enabling these people to secure property to which they say they are entitled, and thereby settle a controversy between them out of the usual and ordinary way.
    The whole weight of authority in this country is, that a court will refuse a mandamus if the rights of the party applying therefor is not clear, nor if he has a legal remedy by an ordinary action equivalent to a specific remedy. U. S. v. Bank Alexandria, 1 Cranch (C. C. 7); People v. Judges, L. Doug. (Mich.), 319; Morawetz Private Corp., Sec. 337; Williams v. Judge, 27 Mo., 225; High on Extr. Rem., Sec. 313; State v. Graves, 19 Md., 351; Wood on Mandamus, 23; Smith v. Chicago, etc., R. R. Co., 67 Ill., 191.
   Williams, J.

The original action was mandamus, brought in the court of common pleas of Ashtabula county, by the plaintiff in error, against the President, Secretary,' and Treasurer of The Baker Engine and Machine Company, a manufacturing corporation organized in this state, to compel them to issue to the relators, Bross and Baker, certificates for three hundred and ten shares of the company’s stock, of one hundred dollars each, which, it is alleged, the relators duly subscribed and paid for, and for-which the defendants refuse to issue certificates to them. The relators allege that they have no adequate remedy at law, and pray for a peremptory writ. The answer denies that the relators paid for the stock, or paid any sum whatever on their subscription, and avers they are indebted to the company for the full amount thereof, namely, thirty-one thousand dollars. The court found the issues for the defendants; and held, furthermore, that the remedy of the relators at law was adequate, and on both grounds denied the writ. The circuit court, to which the cause was taken on appeal, stated its conclusions of fact and of law separately, at the request of the plaintiff. It found that the relators fully paid for -the stock, and were entitled to the certificates, but held their remedy was in equity, and for that reason refused the writ; and it is claimed here, that in so holding, that court committed an error.

The cases are in conflict upon the question whether the remedy by mandamus may be employed to compel the issue or transfer of certificates of stock of a private corporation. The remedy, in this state, is controlled by statutory regulations which define the writ, and determine the cases in which it may issue. “Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Revised Statutes, section 6741. A limitation upon the remedy is contained in sec-' tion 6744, which provides, that, “The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.” The duty of issuing certificates of stock of a private corporation, to those entitled to receive them, is specially enjoined upon its officers, it is claimed, by the following provision contained in section 3254, of the Revised Statutes, viz.: “Stockholders shall be entitled to receive certificates of their paid-up stock in the company; and the president and secretary of the company shall, on demand, 'execute and deliver to a stockholder a certificate showing the true amount of the stock held by him in the company. ” And we think there can be no doubt that such a corporation is bound, through its proper officers, to issue to each stock subscriber who has fully paid for his stock, a certificate truly representing his interest in the corporation. But the question still remains, what is the appropriate remedy for the refusal or failure to do so? If there be “a plain and adequate remedy in the ordinary course of the law,” the courts are prohibited by statute from issuing the writ of mandamus. Shares of stock in a private corporation are personal property; and it has long been settled that an action for damages for their conversion may be maintained, upon the refusal, on demand, to issue or transfer certificates to persons entitled to them. True, there has not always been uniformity in the rule applied in determining- the measure of the damages in such cases; it being held in some, that the value of the stock at the time of the conversion is the measure of the damages that may be recovered; in others, its value at the time of the trial; and in others still, its hig’hest value at any time between the conversion and trial. The first of the rules above stated is the one which seems generally to prevail, unless there is something in the nature or circumstances of the conversion which enhances the damag’es. But the damages are not necessarily limited to the market value of the stock. Its actual value may be recovered; and that may be shown by proof of the value of the property and business of the corporation, its good will, and dividend-earning capacity. Freon v. Carriage Company, 42 Ohio St., 38; Cook on Stock and Stockholders, section 581.

Besides, “remedy in the ordinary course of the law,” is not confined to those actions which before the adoption of the civil code were actions at law, but embraces what were suits in equity as well; and if, for any reason, an action for damages might prove inadequate for the full redress of the relators’ injury, we see no reason why they could not obtain that complete measure of relief in equity. It was held by this court, in Railroad Company v. Fink, 41 Ohio St., 321, that a suit in equity may be maintained against a corporation to compel it to issue a stock certificate, to a subscriber, or his assignee, upon tender of the sum subscribed. Indeed, that remedy is well established, and is the one generally pursued in such cases, and also m cases where the transfer of stock on the books of the corporation, or a certificate of such transfer, is sought. Cook on Stock and Stockholders, sections 61j and 391. In the last section cited, that author says, the remedy by suit in equity is the most complete and most just one for compelling a corporation to register a transfer of stock, and “is a remedy applicable to almost all cases arising under a refusal of a corporation to allow a registry of transfer. The case will be decided on equitable principles, however, and a transfer will not be decreed if it involves bad faith. The relief usually demanded is in the alternative, being either for a registry of the transfer, or damages in lieu thereof.” The reasons which conduce to the holding that a suit in equity is the most satisfactory and complete remedy to accomplish the registration of transfers of stock, apply equally when the object sought is the issue of certificates originally. Mandamus is not well adapted to the trial of questions of fact, or the determination of controversies of a strictly private nature. Its office' is rather to command and enforce the performance of those duties in which the public have some concern, and where the right is clear, and does not depend upon a Complication of disputed facts which must be settled from the conflicting testimony of witnesses.

There is nothing in the facts of the ease before us which show that an action for damages, or suit in equity, would not furnish the relators a plain and adequate remedy for the wrong complained of. It is not alleged that the corporation has refused to admit them as members of that body, or denied them the right to vote or be voted for’ or to exercise their privileges as stockholders; nor, that any of their personal advantages or privileges as such, have been interfered with. The writ of mandamus has sometimes been issued to compel the admission of members in corporate bodies when essential to the preservation of personal advantages -to which they, show themselves to be clearly entitled. The petition alleges, in general terms, that the relators “have no remedy at law;” but that amounts to nothing more than a declaration of the pleaders opinion, and, as an allegation of fact, is without force. Our conclusion is, that where the officers of a private corporation, organized for profit, refuse, upon demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damag’es, or in equity to enforce the issue and delivery of the certificate. If, for any reason, the one does not, the other will, afford him a plain and adequate remedy, and he may resort to either at his election. Mandamus cannot, therefore, be properly invoked.

Judgment affirmed.  