In re Fleming's Petition , 16 Wis. 70 ( 1862 )

By the Court,

Paine, J.

This is an appeal from an order of the circuit court, directing an election to be held for Directors of the Milwaukee and Minnesota railroad company. The order was made in pursuance of chap. 211, Laws of 1859, authorizing such an order, on the .petition 'of any stockholder, where it is found after due notice and hearing, that the directors have' neglected or refused for the space of two years to call and hold such election.

The case was not argued orally, and the appellant’s counsel have furnished us no brief. The respondent contends that the order is not appealable, upon the ground that the power conferred on the court or judge, by the chapter above mentioned, is not properly judicial in its character. And he claims that the appeal given by section 10, chapter 264, Laws 1860 “from a final order affecting a substantial right made in special proceedings ” relates only to special proceedings of a purely j u-dicial character. We were at first inclined to adopt this view, but upon further examination have come to the conclusion that an application of this kind, must be deemed to be a special proceeding within the meaning of the law of appeals. The relief furnished is certainly of a remedy fora right of the stockholders. It is a remedy furnished by a court of justice. It must therefore be either an action or a special proceeding. And as it is not claimed to be the former, it must be the latter. Sections 1, 2, 3, chap. 122, R. S. N. Y. Central R. R. Co., vs. Marvin, 1 Kern. 227; Cooper's application, 22 N. Y. 86.

The reasoning in the case last cited, would sustain the position that the power here conferred must be deemed a judicial power, if that is essential to the appeal, from the mere fact that the statute has conferred it upon a court, although. it was not so inherently judicial in its character, that it might not as well have been conferred upon any other department of the government. Several of the ablest judges dissented, and whether the proposition thus broadly stated, could be sustained in all cases, may perhaps admit of doubt. But the power in this case is clearly such as it was. competent for the legislature to vest in a court, j It seems to be a substitute for the power of compelling an election by mandamus, which might be done without this statute. Ang. & Ames,, on corp. § 700. We are satisfied therefore, that the power here exercised, must be deemed of such a character as to come within the general scope of the law relating to appeals in judicial proceedings.

Such an order must be held also to affect a substantial right. If the directors had duly called an election, and officers had been properly elected, according to the requirements of the law, it would lead to great doubt and confusion if anothir election should be called and( held. If the right of a stockholder to have an election is so subtantial that the law will furnish him the means of compelling it, the rights of the other stockholders to the benefit of an election duly held, if they can show such to have been the case, must be substantial enough to sustain the right to appeal.

Holding the order appealable there is nothing justifying its reversal. The case presented by the petition comes fully within the^provision of the statute and nothing is showu on the other side. The order is affirmed, with costs.