The sun., 1901-11-18
CANNOT MOVE
STATE PAPERS
Chancellor Nicholson Hands Down
Opinion in Injunction Case.
THE DECISION IMPORTANT
The Matter Was the Most Interesting
That Has Come Before the Cham
ceIlor Since the Enactment of
the Corporation Act.
THE DECISION IMPORTANT

Chancellor Nicholson has handed
OF the Delaware Surety Company VS..
Secretary OF State Layton, "a motion to
restrain DIR. Layton from removing the
cOmpany's sworn statement of the pay
ment OF its capital stock from the fire
proof vault of the secretary Of State,
where it is held as State records.
The case has been the most interesting
that has come before the Chancellor
since the enactment of Delaware's Cen
eral Incorporation law, in that is not
only involved the question of the secre-
tary's right to remove any of the cor
poration papers from the State House.
hut it practically settles criminal pros
ecution against two prominent New York
apitalists--I,resident Martin and Secre-
tary Belthusen of the complaining com
pany-for perjury in swearing falsely
to the certificate in question that the
company had paid in $1,OO0,0O0 of it's
capital stock. From legal standpoint
the ease was of rare Importance as is
seen in the following clause of the chan
cellor's decision:
"Neither the counsel in the case nor
myself have been able to find, notwith-
standing the most diligent search, any
case where ii appears that either State
or county officer had ever attempted to
take out Of the jurisdiction of State an
original paper properly filed in any court
or public office therein"
The decision ambodies the defendants
admission 0f proper filing and the idea
Of permanent preservation of the certifi-
cate. and the defendants contention that
| b., 80 - tbi..
case il would he lawful for the defendant
30 take this certificate, the chancellor
would not enj0in it because the complaint
does not come into court with clean
hands. The chancellor says:
| admitting all these allegations to be
true, am entirely unable to see what is
their relevancy to the question Of the
| right Of the defendant to take from the
files of the office of the secretary of
State n certificate regularly filed therein,
and to carry il ont of the jurisdiction of
the State 1t is evident upon NOM
cnt's reflection that il, as the learned
counsel contends, the secretary of State
has the power to remove papers from the
files of his office 10 other States, when
ever nm occasion arises which causes him
to think it right and proper to do 80.
then the courts of the State have moth
ing whatever ta do with the exercise of
the secretarys discretion" The deci-
sion goes on to refer to the impotency of
the courts ever in aggravated cases il
| the secretary of State has this general
discretionary power. Then the chan
rcllor says:
IF he should take such certificate out
of the State of Delaware, the moment
he enters within the jurisdiction of any
other State he may be compelled, by n
writ of subpoena dnces tecum, to produce
it before any competent tribunal in such
| State Thus the very act of entering
upon the soil of another State with the
said certificate in his possession would
necessarily put it out of his power to re-
tain it in his custody and control" Re-
fcrring to Attorney General Wards con-
tcntion that it is Delaware's duty to as
Sist in every possible way in the discov-
cry and punishment Of frauds that may
he committed under the cloak of char
tcrs which derive from the State their
powers for good on evil without as well
MS within the borders of the sovereignty
which grants them, the chancellor says:
"Fhis is subject for grave consider
alton. and the constantly increasing bur-
den that tins duty will impose upon our
attOrney-general and our courts can
scarcely he overestimated. Each official
has his proper duties and responsibilities,
and If our house is to he kept in order
and the corporations which the State is
creating 50 rapidly are to be rigidly held
to account, the secretary Of States share
in their labor would seem to consist
chiefly in the strictest possible custody OF
the important papers filed in his office in
order that they might always be within
the reach of the courts of our own State
for the ends of justice i'll the home tri
bunals."
From Chancellor Nicholson's opinion Of
Saturday it would therefore seem that
the Amalgamated Copper people woult
fail to convict the Delaware Surety
(Ieinze) Company officials of perjur!
and that the company's bond would ac
cordingly have to be accepted by tht
State OF Montana when offered again b.
the Henze interests to permit theil
: operation of The fertile Pennsylvania
copper mine.