Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-11-21

novel meaning 10 the word filed. and make
the whereabouts of such documents from
week to week and from year to year mat
ter OF pure conjecture. Such statute might
limit and define the power conferred, hut II
without special statutory provision the Sec
retnry OF State should be held to possess the
discretionary power claimed In the case of
this certificate of incorporation, he must
inevitably be held to possess the same power
IN the Case OF every document in his office
and the control over of State papers and the
uses to which they might ne nut, to sny
nothing OF the strange localities to which
they might travel. would depend in the first
place upon the varying discretion and purify
OF motive of each different Secretary OF
State, and in the second place upon the in
terests and the alertness of suitors in the
different Jurisdictions TO which they might
be conveyed.
The learned solicitor for the defendant
uwelt with force and eloquence upou the
duty of the State of Delaware to assist ia
every possible way in the discovery and pun
ishment of any frauds that may be COM
mitted under the clonk OF charters which
derive from the State their powers for good
or evil, without MS well as within the borders
OF the sovereignty which grants them. This
is subject for grave consideration, and the
constantly increasing burden that this duty
VIII imposes upon our attorney general and
our courts can scarcely he overestimated.
Each official has his proper duties and re-
sponsibilities, and II our house is 20 be kept
In order and the corporations which the State
is creating so rapidly are to be ricidly held
to account, the secretary of States share in
the labor would seem to consist chiefly in
the strictest possible custody of the impprt-
ant papers filed In his office. in order that
they might always be within reach of our
own courts for the ends of justice In tho
home tribunals.
For the reasons above given, and for many
others which Ii would be superfuous for me
to adduce, am clearly of the opinion that
the proposed removal by the defendant, the
secretary of State, of the said certificate
from the files OF his Office out of The iuris.
diction of the State of Delaware, to wilt. to
the City of New York, is beyond the scope
OF his authority and would be an Illegal
act.
1t only remains, therefore, to consider
whether preliminary injunction should be
granted in the present cause to restrain the
secretary of State from committing such
illegal act.
The law with regard to judicial power in
such cases Is entirely well settled, but 1t is
SO admirably, SO comprehensivey and so
compactly stated by MIR. Justice Brown in a
case Involving the power of the court TO en-
join the head of department, the Secre-
tary of the Interior, that cannot refrain
from quoting it at length;
with regard to the judicial power in
cases of this kind,it was held by this court as
early as 1903, in the great case of Marbury
We. Madison, / Cranch, 1877, that there was
distinction between acts involving the ex-
ercise OF judgment or discretion and those
which are purely ministerial that with re-
spect to the former, there exists, and can
exist, no power to control the executive dis
cretioD however erroneous its exercise may
seem to have been, but with respect to min
isterial duties, an act or refusal to act is, or
TnQ xfh fha Is II 4. A.
courts. The principle of this case was mp.
piled 10 Kendall vs.. Stokes. ~ Peters, 524,
and the action of the Circuit Court sus-
tanned in proceeding where il had COM
manded the Postmaster General to credit
relator with certain sum awarded to him
by the solicitor of the treasury under an net
OF Congress authorizing the latter to adjust
the claim. this being regarded as purely
ministerial duty. In Decatur vs.. Pauding,
IA Peters, 497, mandamus was refused
upon the same principle to compel the Sec
rotary OF the Navy to allow to the widow of
Commodore Decatur certain pension and
arrearsges. Indeed, the reports of this
court abound with authorities to the same
effect. Kendall vs.. Stokes, Howard, 81;
Brashear vs.. Mason, 6 Howard, 81; Reside
V. Walker, II How, 272; Commissioner of
Satents '; Weitelsy, Wall, 5s2; uLited
States Y. Guthrie, II How, pa United
States '. The Commissioner, WALL, 1853;
Gaines v. Thompson, z WALL. s47; The Sec
rotary v. McGarrHhan, 8 WALL, 2aS; United
States '. Schurz, 1o2 U. s., 37s; Butter
worth ', Hoe. 112 u. s., so; United States
the distinction between judicial and minis
terial acts Is commented upon ana enforced.
We have no doubt the principle OF these
decisions applies to u case wherein it Is con-
tended that the act Of the head of depart
meut under any view that could be taken OF
the facts that were laid before him, was
| ultra wires, and beyond the scupe of his
authority. If he has no power at all to do
| the act complained of, he is as much subject
| to an injunction as he would be to d man
damus, II he refused to do an act which
| the law plainly required him to do As OBJ
served by MIR. Justice Bradley, in Board of
Liquidation v. McComb, 92 q. s., 531. SAL:
But it has been well settled that when
plain official duty, requiring no exercise OF
discretion, is to be performed, and perform
ance is refused, any person who will sustain
personal injury by such refusal may have
mandamls to compel its performance; and
| when such duty Is threatened to be violated
by some positive official act, any person
who will sustain personal injury thereby.
| Tor which adequate COMPENSATION cannot be
made at law, may have an injunction to pre-
vent 1t. In such cases the writs Of nandamns
and Injunction are somewhat correative to
| each other"
1
already, the defendant has no power to do
the act complained of and is therefore sub
| 1ect to an Injunction, it follows, therefore,
that in order to decide the pending motion
| it is only necessary for Inc to determine
| whether the complainant in this cause has
the necessary standing IN a court of equity
to entitle u TO the injunction prayed for.
| In the first place, as ! have stated above,
| IL Is the right of the complainant, under
the laws of the State of Delaware to have
the said certificate remain as a record in
the office OF the secretary of State. and it
appears from the allegations Of the bill and
the considerations set forth above that it
| will sustain injury by the removal of said
| ertiticate from said Office, out of the iuris-
| diction OF the State of Delaware and into
| the jurisdiction of another State for which
1 adequate compensation cannot be had at
/ law. From this 1t is manifest that the COM
| plainant is entitled 10 a preliminary injunc-
tion to prevent such removal, unless the one
remaining objection of defendants solicitor
| can be sustained.
| All the arguments advanced by the inQen-
| ious and able counsel for the defendant have
been considered except his contention, based
| upon the maxim: He WHO comes into
argument upon this point Is that the charges
already set forth as pending before the New
York magistrate against the president and
secretary of the complainant are evidence
OF misconduct on the part Of the corpora
| ton complainant of such character and so
connected with the subject matter as TO pre-
vent theCouIt of Chancery from restraining,
upon its application, the Illegal removal
| from the files of the secretary of State and
from the jurisdiation of the State of Della
ware, OF a record in which the said com
plainant has an admitted property interest
A critical examination of the applications
| and Limitation of this maxim does not an
| pear to me to be necessary in order to de-