
    Freon v. Carriage Co.
    1 Mandamus is not the proper remedy .to enforce the performance of a duty imposed upon the officers of a private corporation organized for profit merely, where such duty is not specifically enjoined by law, and where there is a plain and adequate remedy either at law or in equity.
    2. The purchaser of shares in such a corporation, where the incidental rights of a stockholder do not- depend on the ownership of these specific shares, is not entitled to a writ of mandamus to compel their transfer.
    3. The fact that the business of the corporation is very profitable, that its shares of stock have no known market value, or are greatly enhanced • by the good-will of a growing business, will not vary the rule where > the actual value is ascertainable in an action to recover damages.
    Application for alternative writ of mandamus.
    The district court of Hamilton county refused to grant the alternative writ prayed for, and the application is now made to this court for that purpose.
    There is no denial of the facts stated in the petition, so the question of law presented is, do these facts warrant the issuing of the writ ?
    The petition, after alleging that defendant is a manufacturing corporation under the laws of Ohio, avers that the plaintiff purchased of a stockholder, a share of stock in the defendant corporation, and received the certificate thereof, duly transferred to him, whereby he became the owner of such share.
    He avers that he presented said certificate with the transfer thereon, to the officers of the corporation and demanded a transfer of the stock to his name, and that he be enrolled among the list of stockholders, and be recognized as a member, and admitted to all the rights of a stockholder. These requests were refused, and he was then notified that he should not then nor at any other time be so recognized, or be admitted to the privileges of a stockholder, or to vote, or receive any profits or advantages to be derived by a stockholder.
    Then follows what are claimed as special reasons for granting the writs, as follows:
    “ Plaintiff further says that defendant company was organized and incorporated, as aforesaid, for the purpose of manufacturing carriages, buggies and other vehicles, in said city of Cincinnati, and has ever since been and now is manufacturing said carriages, buggies and other vehicles, and selling same for profit, and conducting said business; that his right to have said certificate named, transferred on the books of said company, and to have his name registered or enrolled on said book, kept for that purpose by said secretary, for said' company, as a member and stockholder therein, and to become a member thereof, to participate in the management and conduct of the business, is of great and inestimable value to him, not only in the present, but also, and more particularly, in the future, because of the great good will which the said business enjoys and the great prospective value of the business itself; that not only is the said paid up certificate of stock now the property of the plaintiff, of great value, but said company has for several years past been doing a large and profitable business, has • made large sums of money, acquired the title to valuable real estate, now of great value with prospective enhancement, and has a large factory now in operation, which it now owns and holds by legal title, with right of alien-ability, in said city of Cincinnati; and that the prospects for future business, based upon said good-will, and its property and assets, and the growing business of said company are conducive to further earning of large profits, in which the plaintiff, as said stockholder, has a vested right, which, by the said refusal, as aforesaid, he will be unable to acquire and enjoy ; that the real value of said share of stock, based upon the present assets and property of said company, cannot be ascertained with certainty, but in view of said good will and the said growing business will become very valuable by the proper conduct and management of said business, to which the plaintiff is entitled, by virtue of being a stockholder, to have a voice.
    
      “ That he has no adequate remedy at law in the premises, and that said company threatened to, and do prevent the plaintiff from any access to the said business or participation in the same, or in the profits, which will certainly be derived in the management of said business, and that the refusal and denial of the rights hereinbefore urged, will work, unless pro-ected by the court, irreparable injuiy to him.”
    
      Milton Safer, Long, Kramer & Long, for the relator:
    The relator being the undisputed owner of a share of stock in defendant company, and having demanded a transfer to his name, on the books of the company, and such demand being refused, mandamus will be awarded to compel a transfer. Weston v.Bear River Min. Go., 5 Cal. 186 ; People Y.Croclcett, 9 Cal. 112; Green Mountain Turnpilce Go. v. Bulla, 45 Ind. 1; Campbell v. Morgan, 4 Bradw. (Ills.) 105 ; Cooper Y.Oanal Go., 2 Murp. (N. C.) 195; State v. Warren Foxmd/ry Co., 32 N. J. L. 439 ; Townsend'Y. Mclver, 2 S. Car. N. S. 25; Martin v. N. O. da O. R. R., 30 La. An. 308; Field on Corp. § 139 ; 1 Redfield on Railw. 144; 2 Id. 281.
    And mandamus has been awarded to compel the admission as members to a corporation of those entitled to become such. Rex v. March,- 2 Burr. 999; Da Oosta v. Russia Go., 2 Strange, 783 ; Reg. v. Saddlers Go., Bail Court Cas. 183; People y. Medical Society of Erie, 32 N. Y. 187 ; Lamphere v. Grand Lodge A. O. U. W., 11 N. W. R. 286.
    
      And it lias been awarded to compel a corporation to keep a registry and insert therein the names of stockholders. Harris v. Irish Land Go., 3 Ellis & B. 512 ; Beg. v. Bailway Go., 11 Eng. C. L. 408; Beg. v. Midland B'y Go., 9 Law Times (N.S.) 151 ; Morris v. Irish Land Go., 8 Ell. & B. 525 ; Ma-rot y. South-Bast B’y Go., 29 L. J. Q. B. 177; Swan v. North British, etc. Go., 31 L. J. Ex. 425.
    And generally where the performance of a plain duty is imposed either by statute, charter, custom or contract on an officer of a public or private corporation mandamus will be awarded to compel its performance. Field on Gorp. § 504.
    Defendant company was organized under the act of April 12, 1858 (55 OhioL. 145) S. & C. 301. Section 81, page 304, provides among other things that the directors, “ shall cause a record to be kept of all stocks subscribed and transferred, and all business transaction, and their books and records shall at all reasonable times be open to the inspection of any and every stockholder,” and this provision has been substantially incorporated into the Revised Statutes, 1880. See section 3242„as amended 80 Ohio L. 42, 3263, as amended 79 Ohio L. 104, 3264, 3268. We are aware that there are a number of authorities in which it has been held that mandamus will not be awarded to compel a transfer of shares, because there is an adequate remedy at law in an action for damages ; but it will be noticed that they were all decided upon one of the follow-lowing points : 1st. That the shares in controversy had an ascertainable market value, and were of that class of stocks bought and sold in the market, and their value could be readily and certainly ascertained. 2d. That there was a controversy, or one likely to arise as to the ownership of the shares, and the title of the relator not clear.
    This will appear by reference to State ex reí/ v. Peoples B. & L. Ass'n, 43 N. J. L. 389 ; Staelepole v. Seymore, 127 Mass. 104; Murray v. Stevens, 110 Mass. 95; Shipley v. Bank, 10 Johns. 484; Dos Passos on Stock Brokers, 741.
    This writ lies in all cases where the relator has a clear legal right to the performance of some official or corporate act by a public officer or corporation, and no other adequate specific remedy exists. C. W. & Z. R. R. Go. v. Clinton Co., 1 Ohio St. 77, 105 ; Moses on Mand. 108; Wood on Mand. 23, 24.
    In other words, the remedy must be plain, adequate, and give relator full and complete satisfaction, equivalent to a specific relief, to justify the refusal of the writ.
    And the mere fact that an action or proceeding will lie, does not necessarily supersede the remedy by mandamus. The relator must not only have a specific, adequate and legal retnl edy, but it must be one competent to afford relief upon the very subject matter of his application, and if it be doubtfu-whether such action or proceeding will afford him a complete remedy, the writ will issue. Moses on Mand. 112; 6 Col. 318 ; Fremont v. Crijjpen, 10 Cal. 211; Ethide v. Rail, 7 Porter, 47 ; 23 Cal. 391; People ex rel. v. State Treas., 24 Mich. 469 ; State v. Wright, 10 Nev. 167, 175 ; G. IF. c& Z. R. R. Go. v. Clinton Go., 1 Ohio St. 77, 105 ; Dos Passos on Stock Brokers, 742.
    Tested by the rule stated in the foregoing authorities an action for damages could under the allegations of the petition be either plain, adequate, or equivalent to the transfer of the share to relator, the value of the share not being ascertainable, and such a remedy, resulting necessarily, in the loss of the stock as property, by a judgment for value, even if such value is ascertainable. The relator’s remedy at law is not only doubtful, but he has no adequate remedy except by mandamus, to give him all he is entitled to, and to allow him to retain his ownership of the share. The rule is that the measure of damages for refusing to transfer a share of stock is the value at the time of such refusal. Railroad v. Robbins, 35 Ohio St. 501.
    Of course this would deprive relator forever, from enjoj^-ing any of the rights or advantages, which belong to the share, either as an investment, or otherwise, after judgment rendered.
    How conld the value of the good-will be estimated ? It may be valued as of a certain time, at the death or retirement of a partner or the sale of the business, but not as of a future time, or in a going concern. 3 Kent’s Com. 64 and notes; Collyer on Part. § 162 ; Moody v. Thomas, 1 Disney, 294, 298 ; Gary v. Gunnison, 17 N. W. Rep. 881.
    The attempt to determine the value of the good will of a going concern like defendant company, at a future time, and the value of its property, assets and business for the purpose of ascertaining relator’s damages by the refusal to transfer the share, recognize and admit him to membership, with its rights and privileges, would be entering into the field of uncertainty, speculation and conjecture, which the law does not permit. Rhodes v. Baird, 16 Ohio St. 573.
    Uoadly, Johnson & Colston, for respondent:
    The relator is not entitled- to the writ of mandamus, because he has a plain and adequate remedy by action in the ordinary course of the law. 2 R. S. of Ohio, § 6744.
    A mandamus is a writ commanding the execution of an act, where otherwise justice would be obstructed, or the king’s charter neglected, issuing regularly only in cases relating to the public and the government; and is therefore termed a prerogative writ. 3 Bacon’s Abridgment, 527, Mandamus A.
    Prior to 1853, the date of the adoption of § 570 (2 S. & 0. 1126), there was no statute in Ohio pointing out “ the oc-. casion upon which the writ is to issue.” Matter of Turner, 5 Ohio, 543.
    The court there adopts the definition of mandaibus, and the rule as to when it will issue, that are laid down by Lord Mansfield in 3 Burrows, 1267.
    These principles of common law became statutory rules in Ohio, by § 570 (2 S. & 0. 1126), which provided that this writ “ May not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.” Wo submit, therefore, that mandamus will not lie in this case, because the relator had a plain and adequate remedy, by action for damages. The following cases hold, that when a corporation improperly refuses to transfer stock, the party injured has an ample, though not a specific, remedy by action, and that mandamus will not lie. ' King v. Banh of England, 2 Doug. 524; Matter of Shipley v. Mechanics’ Bank, 10 Johns. 484; Exp. Firemen's Ins. Go., 6 Hill, 243; Wilkinson v. Providence Bank, 8 R. I. 22; Baker v. Marshall, 15 Minn. 177 ; State v. Rombauer, 46 Mo. 155; People v. Parker Vein Goal Go., 10 How. Pr. 543; American Asylum v. Phoenix Bank, 4 Conn. 172; Elliott v. Guerrero, 12 Nevada, 105 ; Murray v. Stephens, 110 Mass. 95 ; Stackpole v. Seymoior, 127 Mass. 104 ; State v. Warren Foundry Go., 32 N. J. Law, 439 ; State v. Building Association, 43 N. J. Law, 389 ; Birmingham Fire Ins. Go. v. Gommonwealth, 92 Penn. St. 72, 77; Bank v. Harrison, 66 Ga. 696 ; Hill v. Pine River Bank, 35 N. PI. 300 ; Morawetz Private Corp. § 337 ; King v. London Assurance Go., 5 Barnw. & Aid. 899.
   Johnson, C. J.

The defendant is a corporation for manufacturing purposes organized under the act of April 12, 1858 (1 S. & O. 301, 304), but is now governed by the provisions of the Revised Statutes relating to private corporations for profits. By section 3254, Revised Statutes, a stockholder is entitled to a certificate of stock, and it is made the duty of the president and secretary to issue the same to 'him. By section 3255, shares of stock are declared to be personal property, subject to levy and sale on execution.

The corporate powers, business and property of the corporation, are vested in a board of directors. The corporation may adopt a code of regulations, not inconsistent with the constitution and laws of the state, and the directors, with like limitations, may adopt a code of by-laws for its government. The directors are clothed with this general power, to be exercised in the discharge of the trust reposed in them. The statute does not in terms specifically require that registry and transfer books, be kept, nor does it specify in what form, nor under what conditions such a transfer will be made. Whatever duties exist in relation to transfers of stock, arise from the general provisions of the statute, and the nature of the duties imposed by the trust relation which the officers occupy towards stockholders.

By section 3259, the term “ stockholder ” within the meaning of the individual liability section (3258), includes the equitable, as well as legal owners,. — actual owners as well as registered owners. Such equitable owners by transfer of the certificate and notice thereof to the company, are entitled to draw dividends, where there is no dispute between the assignor and assignee as to title. Railroad v. Robbins, 35 Ohio St. 484.

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 (Rev. Stats. § 6741). The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law” (R. S. § 6744). It results from these provisions that as against a corporation, the writ can only issue for a neglect to perform some corporate duty specially enjoined by law where there is no other plain and adquate remedy. If therefore the neglect or refusal relates to a corporate duty, not enjoined by law, or results in a private injury merely, that may be compensated in damages, or is a breach of the trust reposed in the corporate authorities that may be enforced in equity, the writ.must not issue. So where the right is doubtful resort must be had to the proper forum in law or equity for relief.

In the case at bar the only breach of duty alleged, is the refusal of the corporation to transfer this share of stock and to enroll the relator as a stockholder. True, it is alleged, that the corporation notified the relator that they would never recognize him as a stockholder, nor allow him the privileges resulting, such as the right to vote, receive dividends, etc.; but as it is not averred that there are dividends to be drawn, or election to be held, such a notification is a mere threat as to its future course toward him, and not a breach of official duty, for which mandamus would lie in any case.

This corporation is one of purely a private character. It is organized and operated for private gain merely. It is charged with no public duty or trust in the management of its affairs, that are not imposed on unincorporated associations or partnerships engaged in a like enterprise. Its refusal to transfer this share of stock, and enroll the relator as a stockholder, may be a breach of corporate duty to a private individual, but if he has a plain and adequate remedy for this, in the ordinary course of the law, he has no right to use the name of the state in his behalf to redress his injury. That an action for damages will lie for refusing such transfer" is settled by all the authorities, if the ownership is not in dispute.

It is said however, that this stock has no market value, that the corporation is doing a growing and profitable business, that its good-will enhances the value of the stock, and that by reason of these things, damages will not be an adequate remedy.

These facts do not change the rule. They are elements in assessing damages, which may be fully ascertained in an action at law. '

In actions for conversion of. personal property, such as these shares are, the damages are not limited to the market value of the stock. Its actual value to be determined under all the circumstances, such as the dividend making capacity, the good will, etc., etc., is the measure of damages.

In this connection we adopt the language of the court in Murray v. Stevens, 110 Mass. 95.

“ Where the incidental rights of ownership (such as eligibility to corporate offices, or the right to vote at corporation meetings), do not depend upon the ownership of the spécifio shares which are the subject of dispute, but could be as well and fully enjoyed by virtue of the ownership of an equal number of other shares, there would seem to be no occasion to resort to the extraordinary remedy of mandamus. The damages which the relator might recover in an action at common law for the violation of his right would be exactly measured by the sum of money which it had cost him, or would have cost him, to obtain the same right in another way — namely, by purchase. That is to say, with the amount in money of the market value of the shares in dispute they could be replaced. Where recovering the value of the stock would indemnify the party, the writ ought not to be granted.”

In tlie caso at bar there lias been no actual breach of duty-in respect to these incidental rights, such as the right to vote and be voted for, to draw dividends, &c. We are not now called on to determine whether a case might not be made for relief by mandamus, when special injury would result from a refusal to admit a member. The opinion in Shipley v. Merchants’ Bank, 10 Johnson, 484, very aptly expresses the rule : “ The applicants have an adequate remedy by a special action on the case, to recover the value of the stock, if the bank have unduly refused to transfer it. There is no need of the extraordinary remedy by mandamus, in so ordinary a case. It might as well be required in every case where trover would lie. It is not a matter of public concern, as in the case of public records and- documents; and there cannot be any necessity, or even a desire of possessing the identical shares in question, lly recovering the market value of them, at the time of the demand, they can be replaced. This is not the case of a specific and favorite chattel, to which there might exist the pre-tium affectionis.”

Our attention has been called to the fact that there is some conflict in the text-books and cases upon this point. The -result of a very careful examination of these, lead us to the conclusion, that upon authority as well as upon principle the writ should not issue in the case at bar. That the writ should issue to compel the admission of a member into an incorporated society, where the advantages are personal rather than pecuniary, is clear, for in such a case the loss is incapable of a money compensation.

Morawetz on Corp. § 331; High on Extr. Rem. § 313, and Wood on Mandamus, 23, concur in saying that the weight of authority is against allowing the writ to compel the transfer of shares in a purely private moneyed corporation, while Eield on Corp. § 139, is to the contrary, evidently on the authority of Weston v. Bear River Min. Co., 5 Cal. 186, and People v. Crockett, 9 Cal. 112, but these cases are in effect overruled in Kimball v. Union Water Co., 44 Cal. 173, where it is expressly held, that for a refusal to transfer shares in a private corporation, a party has an action in damages, and therefore mandamus will not lie.

In Norris Adm'r v. Irish Land Co., 92 Eng. Com. Law, 511 (8 Ell. & Black), it was held, that mandamus would lie, on the death of a shareholder, to compel a registration in the name of his representative, where the charter specifically required such registration. In that case it was conceded the writ will not issue to compel the execution of a mere private contract, but it is said that under section 68 of the common law procedure, act of 1854(17 & 18 "Victoria, c. 125), this remedy is not confined to cases, where, before the ¡sassage of that act, it would have been granted'. Inasmuch as in that case, the duty of "making the registry was specifically imposed by charter, the writ was awarded, and this seems to be the true ground of the decision.

Under our statute now in force, there is no such specific duty imposed as to transfers of shares in this corporation, but a general authority is given to manage the corporate business in the interest of all the stockholders. This power imposes a corresponding duty to make such by-laws and to keep such accounts and books as are necessary to the discharge of the duties imposed. If transfer books and registers of stock are necessary for this purpose, the law implies a duty to keep them, but we cannot say, that it is a duty specially enjoined by law, but rather an implied duty growing out of the trust relation, which the officers-bear to the stockholders.

"We annex some of the many decisions in support of our conclusion. King v. Bank of England, Doug. 524; Regina v. Mid. Co. & S. J. R. R. Co., 9 L. T. R. N. S. 151; Stackpole v. Seymour, 127 Mass. 104; Birmingham Fire Ins. Co. v. Commonwealth, 92 Penn. St. 72; King v. London Ass. Co., 5 B. & Al. 899; State v. People's Build. Ass., 43 N. J. L. 389; State v. Warren Foundry, 32 N. J. L. 439.

Norris v. Irish Land Co., supra, rests upon the' ground, that the charter specifically enjoined upon the officer the duty of making such transfer. Whether, under section 6741, it would issue in this state for the refusal to perforin a specific duty enjoined by statute, we need not now determine, as the duty of making sucli transfers is not specifically enjoined. That equity will often furnish relief in case of a refusal to transfer stock (or like cases of the breach of trust) where the trust ielation the directors bear to the shareholders is clear. Morawetz on Oorp. § 405 ; Cushman v. Thayer M. Co., 76 N. Y. 365; Railway Co. v. Robbins, 35 N. Y. 500; Ham v. Toledo, W. & W. R. R. Co., 29 Ohio St. 174; 3 Pomeroy on Equity, § 1412.

We conclude, therefore, that, upon the facts stated, the plaintiff’s application must be refused.

Judgment accordingly.  