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

Special Correspondents Of Gazette and Journal.
Dover, Nov IL. Chancellor Nionol-
sor today handed down his opinion in
the case OF theDelaware Surety Co. vs.
Secretary OF State q. r. Layton, an
application for an injunction to restrain
the secretary OF State from allowing
the company's certificate of inoorpora-
tion to go from his possession to another
State, to be used as evidence. The
opinion is as follows: y
The complainantin this cause is cor.
pofation created by and existing under the
laws of the State of Delaware, having been
Incorporated under the provisions of stat
ute entitled IAN Act Providing General
Corporation Law approved March eth,
1901. lf1 a# e'1tt
In accordance with the provisions of that
statute 1t has made through its president
hhd secretary a certificate stating the
amount paid of the instruments or calls of
its capital stock, and whether paid in cash
or by the purchase of property, and also stat
ing the totalamount of its capital stock paid,
which certificate, signed and sworn to by
the president and secretary of the said Della
ware Surety Co., the said president and Sec
rotary did cause to DO filed In the office of
the Secretary of State the defendant in this
cause, as provided by said general act of
! incorporation, which said certificate now
remains in the office Of the secretary of
AState, the said Caleb r. Layton.
The complainant filed dts amended bill on
pc 18th day OF November, instant, in which
prays, interalia, as follows:
That the said Caleb r. Layton may be
Kperpetually restrained By the injunction of
this honorable court from removing or per-
hitting to be removed from the office of the
Secretary of State the said certificate so FLED
by your orator ms aforesaid. and that pre-
limInary inlunctior may issue TO restrain
the seid Caleb r. layton In like manner
until the further order of the Chancellor.
On the said 18th day of November a hear
ing was had of a motion for a preliminary
injunction ON bill, answer and affidavit, and
tine questions involved we're argued at some
length by the solicitors for the respective
parties, the two contentious of complain
ants solicitors being:
First,-That the defendant had no right
TO remove from his Office and take into a
foreign Injunction any paper regularly fled
in said Office; and
Second,-That such proposed action can
be enjoined by the Chancellor in this suit,
Neither the counsel in the cause nor my
self have been able to find, notwithstanding
the most diligent search, any case where it
appeers that either a State or county officer
had ever attempted to take out of the juris-
diction of a State an original paper prop
ierly filed in any court or public office
therein.
1t is admitted that the certificate in oues-
tlUu was properly 1l8d, and it is moi Qtenutad
by defendant's solicitor, that the word
filing carries with 1t the idea of permanent
preservation, that the paper filed becomes
part of the permanent records of the public
office where 1t Is filed, It Is conteuded, how
ever, by defendant's solicitor, that under
the peculiar circumstances of this particular
case it would be unlawful for the def endant
TO take this certificate Of incorporation out
of his office ana carry II out Of the iurisiic
tion of the State; and also, that even con-
removal of the certiticate the Chanceior
would not enjoin It because the Complainant
does not come into court with clean hands.
The circumstances upon which these
claims are based are, briefly, az follows:
The president and secretary Of the com
plainant the said Delaware Surety Co. in
certain proceedings nov pending before a
committing magistrate in New York Citv
are charged with committing the crime Of
perjury, being accused of falsely swearing
to the certifcsts above described, now on
file in the Office of the secreatry of State.
which certificate is alleged to have beer,
verified by them in the City of New York
before a notary public, who, in the exami
nation now pending before the New York
magistrate, is alleged to have asserted that
he was without any present memory as To
!. whether or not he had acted us notary pub.
lie; and 1t ID also alleged that, his memory
was not refreshed by the inspection OF a
certified copy OF the said certificate. hut
it0db IL LDlKnt, Dc fe1fcgleQf DV luapnrtiOn
of the original certificate.
These are the alterations contained in an
affidavit filed I, in this cause, made bv Mr.
Herbert r. LimberRer, who describes him
self in said affidavit as one OF the ATTORNEYS
for Ernest @. WaRenfuhr, the complainant.
as Mr.. Limberger states. in certain pro-
ceedinR now pending n, n ms vistra n d court
in the City OF New York, wherein The nresiD
dent and secretary of the Delaware Surety
%. are charged with committing the crime
of perjury.
Admitting all these allegations tn be true
j am entirely unable to see what is their
relevancy to the question of the right of
defendant to take from the files of Inc office
of the secretary of State a certi ficate reyi,
larry filed therein, and to, carry n out of
,tbe jurisdiction OF the State. IL Is evident
upon a moments retiection that IL as the
learned counsel contends, the secretary ri
iState has the power TO remove papers from
the files of his office to other States. when.
lever an occasion arises which eaases hIn To
think it proper and right SO TO do, then the
courts of the State have nothing whateyer
Ito do with the exercise Of the secretarv,s
discretion. The Court OF Chancery cnnd
mot enjoin him from the exercise of dis
cretionary power, no matter how disastrous
or scandalous might be the occasion of its
exercise; nor could the Superior Court
compel him by niandamus TO exercise such
power, no matter how heneficent and desir-
able Its exercise might apnear tu he il some
peculiar combination of circumstances. All
this is elementary law, obvious No a glance
I On the other hand. IL he does not nossess
ieuch a power. his exercise of IL Ia an iIlaoaI
Iact, and his motives or tfleiises IN which he
] might intend the paper ia be nut in the
foreign jurisdiction TO which he would carry
It, cannot in any way effect the illegality Of