dissenting:
After mature consideration of this case, and of the principles which in my judgment should control its determination, I feel constrained to dissent from the judgment pronounced by the majority of this court.
*352As presented by the record now before this Court on error, it is, in its peculiar features, a case of first impression in this State and, apparently, without precedent in the courts of either this country or England.
Its circumstances are most novel: The relator below is a citizen of Michigan and a stockholder in the Diamond Match Company, which has been incorporated exclusively under the laws of Connecticut, and holds property and transacts a part of its business in Delaware.
Being involved in a suit in Michigan, solely against citizens of Michigan, relating wholly to his stock and the net earnings thereof in said corporation, pledged by him to the defendants in said suit as security for a loan by them to him, the said relator has applied to the Superior Court in Delaware, as such stockholder, for a mandamus against the respondent Win. H. Swift, as president of said corporation, who resides in this State and has in his custody here certain books, agreements and other instruments belonging to said corporation, to compel said Swift, as such president, to allow the relator to make inspection and copies in Delaware of said books, etc., for purposes of evidence in his said suit, and which he alleges are necessary to enable him to maintain it.
The adjudification of this case does not require either the consideration or decision, of all the various and interesting questions raised at the argument. I shall, accordingly, confine myself to the principal inquiry upon which its decision depends, and refrain from determining whether or not a stockholder in a private corporation is entitled to have copies of its corporate books, contracts, etc., for use in a suit to which the corporation is not a party and in the result of which it is not interested; or whether or not, in case such right exists, the corporation should be made a party to mandamus proceedings for its enforcement; or whether or not, in the present instance, the said respondent Swift was authorized under any law of Connecticut to have the custody and control, in Delaware, for any purpose, of the books, agreements, etc., specified in the petition of the relator below, and particularly for the purpose of allowing the relator to make inspection and copies thereof in this State for the object mentioned in his said petition.
It may be well to observe, however, that it is a well settled *353principle of law that a corporation can do no acts, either within or without the State which creates it, except such as are expressly authorized by the law creating and empowering it, or derived from a true construction thereof; and the acts must be done in the manner and by the officers or agents indicated in such law.
Bank of Augusta v. Earle, 13 Peters, 587; Railroad v. Koontz, 104 U. S., 11, 12; Field on Private Corp., Sec. 243, 261.
In this connection the serious question arises: “ Has the relator shown affirmatively and beyond doubt (as the law governing the allowance of mandamus requires him to do) that any law of Connecticut either "expressly or impliedly authorizes Swift, even to have in Delaware, except possibly for his own convenience as president, the said books, etc., specified by the relator, much less to allow a stockholder to make inspection and copies of them there ?” And if not affirmatively shown, can this be presumed in view of the settled principle regarding acts done outside of the State of domicile, and m view of the refusal of the board of directors to permit Swift to allow such copies to be made by the relator in Delaware ?
The relator, as the record discloses, nowhere avers or shows that Swift was expressly so authorized; not does it appear expressly in any way.
Is there anything, then, in any law of Connecticut which implies any authority or imports any design to have the said books, agreements, etc., of the said corporation taken or used outside of Connecticut for the purpose of allowing a stockholder inspection or copies of them in Delaware or elsewhere ? Do not the express provisions and the general purport and policy of the Connecticut incorporation law more reasonably imply the contrary ? Especially those provisions which require that the corporation shall be located in a particular town in Connecticut, where its books and annual statements shall be kept, and shall at all reasonable times be open for the inspection of any of its stockholders; that an assistant treasurer shall be appointed when the treasurer shall reside out of Connecticut, who shall reside within the State, and upon whom notices in all legal proceedings may be served, and who, instead of the treasurer, may sign the annual statements showing the condition of the corporate affairs ?
*354Do not these, in connection with the provisions of said law-requiring the attorney for the State, whenever he shall be of the opinion that the public good requires it, to institute proceedings for a dissolution of the corporation, strongly imply that the books and other papers and instruments necessary to ascertain the exact condition of the corporation, shall be kept in Connecticut for the convenience of that State, in case dissolution proceedings should be required at any time, and, therefore, that the stockholders’ right to inspection, and copies, if it exist at all, is subordinate to this paramount claim of the State, and that the exercise of such right without the limits of Connecticut is inconsistent with both the law and the rights of said State?
And is Swift’s mere possession of the said books, agreements, etc., in Delaware alone sufficient, in view of the foregoing, to raise the legal presumption that he was lawfully authorized to have them here for such inspection and copies ? Is it not more reasonable to infer that he had them here exclusively for his own convenient examination and use as president of said corporation ?
And is it not to be presumed, since the record shows nothing to the contrary, that, being a corporate officer, he would do his duty as such in all respects, and would, therefore, return them to Connecticut whenever required by said corporation, or by the courts of that State, to do so for any lawful purpose; and that, consequently, the relator might have had the inspection and copies sought by him if he had made application therefor to the said corporation or the proper court, in Connecticut, instead of applying therefor in Delaware ?
In the light of the foregoing considerations, are not the probabilities against, rather than in favor of the relator’s alleged right to have inspection and copies outside of that State ? At the best, is not this right doubtful ? If so, the relator is not entitled to relief by mandamus, for the writ is never granted in doubtful cases and the onus is upon him clearly to establish his right. High Ex. Rem., Sec. 9.
But I pass to the graver question—to that which is the paramount inquiry in this case, and the proper determination of which will be sufficient decisively to dispose of it. Has the Superior Court in this State, under existing constitutional and legislative *355provisions, jurisdiction by mandamus over a foreign corporation, its officers or agents, to enforce the performance of a corporate duty not imposed by any law of this State ?
A careful investigation of. the theory upon which corporations both public and private are created, and also of the theory upon which mandamus has hitherto been awarded and employed, especially in this State, must, as I conceive, furnish a negative answer to this inquiry.
The power to confer corporate franchises and privileges always has been considered as vested in the sovereign authority of the State.
The creation of a corporation, whether public or private, is an act of sovereignty whereby a portion of the sovereign powers is conferred upon the corporators. In this country corporate rights and franchises can only be conferred by legislative enactment. Field on Private Corp., Secs. 11, 15 ; Bank of Augusta v. Earle, 13 Peters 595, 587.
Corporations are created, and their rights, powers and privileges are granted for the public good. Dartmouth College v. Woodward, 4 Wheaton, 637.
In the case of private incorporations, which are grants of exclusive franchises and special privileges to particular individuals, the theory that such corporations are created for some supposed public good has furnished the legitimate ground in this country, for such an exercise of legislative power. Cooley Const. Lim. p., 394. In Field on Private Corp., Sec. 17, it is said: “The legislatures of the several states have, by their respective constitutions, the power to make laws and legislate upon all subjects pertaining to the public benefit, and this, in the absence of express provisions on the subject, carries with it by implication, the right to use all the means requisite to the accomplishment of the objects of legislation consistent with the purposes for which the government is instituted and with the state and national constitutions. The public benefit to be derived is the consideration on the part of the State for the creation of private corporations. The motive of the sovereign creating it is supposed to be some good the public will derive from it. This advantage has been considered sufficient to bring their •creation by the legislatures within the scope of the general powers *356to legislate for the public benefit, and it seems now to be universally recognized.”
In consideration, therefore, of the grant of special privileges and franchises the corporation accepting it enters into an implied obligation to the sovereign grantor to exercise all the functions and perform all the duties necessary to fulfill the ends of its creation and promote the supposed public good; and this implied contract made with the sovereign power enures to the benefit of every individual interested in its performance. Dartmouth College v. Woodward, 4 Wheat., 637, 658. Cooley Const. Lim., p. 248.
From this obligation to the state creating the corporation, results the duty to that sovereignty (among other corporate duties) to allow a stockholder the right, when such right clearly exists, to make an inspection of corporate books, papers, etc.
For a failure of the corporation duly to exercise its franchises and functions, and fulfill its obligations to the state creating it, the law has provided two extraordinary remedies, viz : Mandamus to enforce specific performance, and quo warranto to compel a forfeiture of the franchises and a dissolution of the corporation for non-performance of corporate duty.
Mandamus is the proceeding employed in the exercise of the sovereign supervisory power over the agencies created and empowered by sovereignty for the promotion of the public welfare, to compel these to fulfill the ends of their creation.
The people of the sovereignty creating and empowering these agencies, are necessarily interested in seeing that they fulfill the ends of their creation, and do not abuse the powers and franchises with which they have been entrusted, and hence this proceeding should be always in the name of that particular people or State. In England this supervisory power resides in the Court of King’s Bench, and in this State in the Superior Court exclusively.
“In England,” says Chief Justice Taney, in 1838, speaking prior to the common law procedure act of 1854, in Kendall v. United States, 12 Peters, 629, “ the writ of mandamus can be issued by the Court of King’s Bench only. It can not be issued by the Court of Common Pleas, or any court known to the English law, except the Court of King’s Bench. Its peculiar powers are clearly stated in 3 Black. Com. 42, in the following words: “ The juris*357diction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends all civil corporations in the Kingdom. It commands Magistrates and others to do what their duty requires in every case where there is no other specific remedy/ ” etc. “ It is from this high and transcendent jurisdiction that the Court of King’s Bench derives the power to issue the writ of mandamus, as appears from the same volume of Blackstone’s Commentaries, p, 110. These peculiar powers were possessed by the Court of King’s Bench, because the King originally sat there in person, and aided in the administration of justice-According to the theory of the English Constitution, the King is the fountain of justice, and where the laws did not afford a remedy, and enable the individual to obtain his right by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary: judicial powers of the Court, and the mandamus was issued in his name to enforce the execution of the law. And although the King has long since ceased to sit there in person, yet the sovereign is still there in construction of law, so far as to enable the Court to exercise its prerogative powers in his name; and hence its powers to issue the writ of mandamus, the nature of which Justice Doddridge, in Awdley v. Joy, Popham 176, so forcibly describes by calling it extra judicial, and one of the flowers of the King’s Bench. It is, therefore, evident that, by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the Court of King’s Bench, in which the sovereignty might, by construction of law, be supposed to sit, and to exert there its prerogative ’powers in aid of the Court, in order that a right might not be without a remedy.” “ The English common law was adopted in the Colony of Maryland and the courts of the province formed on the same principles. * * * * * * In other words, the general court was in the State of Maryland, after the Revolution, precisely what the Court of King’s Bench was in England. Runkel v. Winemiller, 4 Harris and McHenry, 449. This case was decided in 1799, in the General Court, and it shows, most evidently that the power of issuing the writ of mandamus *358was confined to that Court, and was derived from its 'King’s Bench powers of superintending inferior courts and jurisdictions in the execution of the law, and that this power was not possessed by any other court known to the laws of Maryland.”
And again in this same case of Kendall v. United States, 12 Peters, 621, Mr. Justice Thompson, in delivering the opinion of the Court, said : “ The theory of the British- Government and of the Common Law is, that the writ of mandamus is a prerogative writ, and is sometimes called one of the flowers of the Crown, and is therefore confided only to the King’s Bench, where the" King at one period of the judicial history of that country, is said to have sat in person, and is still presumed to sit. And the power to issue this writ is given to the King’s Bench only, as having the general supervisory power over all inferior jurisdictions and officers, and is co-extensive with judicial-sovereignty. And the same theory prevails in our State governments, where the Common Law is adopted, and-governs in the administration of justice; and the power of issuing the writ is generally confided to the highest Court of original jurisdiction.”
It is true that Judge Taney subsequently in 1860, in Kentucky v. Dennison, 24 How., 97, said: “ The right to the writ of man-dam is, and the power to issue it, has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.” This expression was used in a case before the United States Supreme Court and was correct so far as respects the use of the writ in the Federal Courts. In Commissioners of Knox Co. v. Aspinwall et al., 24 How., 384, decided subsequently to Kentucky v. Dennison, the Court say: “ By the common law, the writ of mandamus is granted by the King’s Bench, in virtue of its prerogative and supervisory power. The courts of the United States cannot issue this writ by virtue of any supervisory power at common law,” &c. And in Kendall v. United States, 12 Peters, 621, the Court say: “To consider the writ |of mandamus in use here, as it is in England, the issuing of it should be confined to this Court as "it is there to the King’s Bench. But this power is not exercised here as in England by the King’s Bench, as having a general supervisory power over inferior courts,” &c. The said language of Judge Taney, moreover, was *359used after the English common law procedure act of 1854 had conferred mandamus jurisdiction upon all the Superior Courts in that Kingdom, and had entirely revolutionized the practice and procedure in its exercise. “ The effect,” says High, " of this sweeping enactment has been to place mandamus proceedings upon much the same footing as ordinary personal actions, and although the statute' expressly preserves the jurisdiction of the King’s Bench as formerly exercised, its necessary result would seem to be the almost total annihilation of the prerogative features of the remedy, reducing it to a personal action for the protection of individual rights.” High Ex. Rem., Sec. 28. While Judge Taney’s expression, consequently, may be applicable to the use of mandamus in the Courts of the United States and in the Courts of England since the recent changes there, yet it can not properly apply to its use in this, or other States where the common law theory of its employment (as formerly in the King’s Bench) has always prevailed and not yet been altered, or modified by statute, and adjudications to the contrary in any such States, are a virtual assumption of legislative power.
It follows, therefore, that, in some of the earlier settled States of the Union, where the common law is adopted, and where the power to issue the writ is given to one Court only, as having the general supervisory power over all inferior jurisdictions and officers, there mandamus has been used as a prerogative writ, in the supervisory sense, as fully and amply as in the King’s Bench in England prior to the modern legislation modifying its use there. That it was so in Maryland has already appeared from Judge Taney’s opinion in 12 Peters, 631. It has also been so used in New York and Illinois. High Ex. Rem., Sec. 4, note 1. The same view has prevailed in this State from our earliest colonial period. The writ of mandamus never has been expressly mentioned in any of the constitutions or. statute j of this State. Jurisdiction by mandamus has been derived from and as incident to the general supervisory powers originally conferred by statute upon the Supreme Court of this State, and afterwards upon its successor, the present Superior Court, pursuant to the provisions of our existing constitution. These supervisory powers have always been confined exclusively to one Court in this State. They appear to have been *360conferred as early as 1726-’36, by the provisions of chapter 54, of volume 1, Delaware Laws, p. 124, which, as modified by the subsequent act of 1760, vol. 1, page 376, and continued under our con-st tutions of 1776 and 1792 (Hall’s Digest, 104), and of 1831, are now in force and contained in Sec. 2, Chap. 92, Amended Code, 564.
That the jurisdiction of our Superior Court by mandamus is the same precisely as that formerly exercised by the Court of King’s Bench in England; that it is an exercise of its prerogative and supervisory power, and that this power is derived from the aforesaid provision of section 2, chapter 92, is shown by the uniform current of authoritative adjudication in this State. It has the direct support of Chief Justice Bayard, delivering the opinion of this court in 1840, in State v. Wilmington City Council, 3 Harr., 299, and also of Judge Harrington in the same case, 307. Also of Chief Justice Gilpin in 1864, in Cannon et al. v. Janvier et al., 3 Houst., 31. Also of Chief Justice Comegys in 1880, in State ex rel. Ferris v. Knight et al. (not yet reported.) These were cases adjudicated in the Superiour Court. But this view has also the sanction of this Court of last resort in this State. For, in Knight et al. v. State ex rel. Ferris, before this Court on error in 1882, Chancellor Saulsbury, delivering the opinion of the Court (not yet reported) said: “ The office of the writ of mandamus is to compel a Corporation, an inferior court, or a public officer to perform some particular duty incumbent upon them which is imperative in its nature, and to the performance of which the relator has a clear le¿al right.” “ The remedy is extraordinary, and if the right is doubtful, or the duty diseretionory, or if there be any ordinary and adjequate specific legal remedy, this writ will not in general be allowed.” “ In England it is considered to be a prerogative writ, and was so called because the power to issue it was vested in the judges of the King’s Bench, the Court in which the sovereign is supposed to be personally present. It is a remedial writ, the appropriate functions of which are the enforeement of duties by officers and others, who either neglect or refuse to perform their duty, an d for the enforcement of which duties there is no other specific legal remedy.” * * * “ The Superior Court exercises jurisdiction in respect to all matters purely legal, whether of *361Common or Statute law, the exercise of which is not vested in tribunals, and being the highest Common Law Court in the State, it has the only authority in this State to award the Common Law writ of mandamus, an authority designed to be supervisory over all inferior legal tribunals, corporations and persons bound to the proper discharge of authority with which they have been clothed by law for the public benefit.” Pamphlet opinion, 4, 6.
The effect of this uniform current of adjudication, by our most eminent judges in our highest Courts here, is conclusively to establish that, in this State, until it shall be modified, as in England, by legislative authority, mandamus is a prerogative writ in the supervisory, though not the regal sense—a writ of sovereignty, not a royalty; that it is issued by our Superior Court, not of course, but only in the exercise of a sound judicial discretion, and employed precisely as in the Court of King’s Bench in England prior to the statutory modifications there, and in the exercise of an “ authority designed to be supervisory; ” and that it properly can be employed only against inferior legal tribunals, corporations and “ persons bound to the proper discharge of authority with which they have been clothed by law for the public benefit ”—that is, persons standing not in a private relation, but in some relation to the public, having a public trust and duty to fulfil and therefore having, in that sense, the status of a public officer. This being so, mandamus can not, appropriately, or lawfully be granted by our Superior Court against any such tribunal, corporation or person, whose powers and duties have not been conferred and imposed by some exercise of the sovereign power of this State.
With respect to its employment against private corporations, in particular, this doctrine is peculiarly applicable. As heretofore stated, a private corporation in this country is created exclusively by statute. Its creation is an act of sovereignty conferring upon specified individuals a portion of the sovereign power for some supposed public good, and which powers they enter into an implied obligation to the sovereign grantor to exercise preliminary in the interest of the people of that particular sovereignty or State, in consideration of its corporate grant. In this and other States, this supposed promotion of the public welfare, in theory at least, is the only legitimate ground for this exercise of legislative authority and *362grant of sovereign power to the corporators for the purposes of private incorporation. It is therefore manifest, since such corporation and the State creating it are the only parties to this obligation, that the duty to fulfil it is due solely to that State, and that the right to superintend and enforce its fulfillment belongs to that particular sovereignty alone. Mandamus, then, being the appropriate writ of sovereignty for this supervisory purpose, and the ground a id object of its use being to remedy the abuse of franchises conferred by sovereignty, it can only be issued, when invoked against a' private corporation, in the name and by the authority of the State which created the corporation, and to which State is exclusively due its obligation to duly exercise its powers and functions so as to promote primarily the public good of the people of that State in fulfillment of the design which that particular sovereignty had in creating such corporation; and this is true whether the writ be invoked by the legal officer of the State, to enforce the obligation in behalf of the public generally, or sought by a stockholder of the corporation, to compel the performance of a corporate duty which may result from this obligation to the State, and so enure to' his private benefit. And this principal is equally applicable whether the stockholder is a resident or non-resident of the State of the domicile of the corporation. In either case the stockholder voluntarily and, in legal presumption, knowingly submits himself to the operation of this legal principle when he becomes a member of the corporation.
The approved definitions of the nature and use of mandamus, as formulated by Courts and text writers of high authority, must be understood as applicable only when the writ may be invoked against a private corporation or its officers within the State alone whose legislature has incorporated it, or imposed the duty sought to| be enforced. For these definitions do not properly apply when the writ is sought elsewhere, and the assumption that they do must necessarily lead to erroneous conclusions.
! The precise question now under consideration does not seem ever to have been adjudicated in the Courts of England. Certainly no decisions- relating to it were present at the argument, and it was said that none could be found in the English reports. Considering how numerous are -the corporations transacting business in England *363of foreign creation and domicile, the absence of any application to an English Court for a mandamus against any such corporation is certainly significant, if not conclusive of its inapplicability thereto.
In this country there is almost as significant an absence of such applications, excepting where such use of the writ has been authorized by statute. In but two of the thirty-eight States of the Union, has the question been the subject of judicial consideration, and, in both, the right to the writ at common law and in the absence of a statute authorizing such use, against a foreign corporation, was denied. The first instance was in the case of People ex rel. Jenkins v. The Parker Vein Coal Co., 10 Howard, N. Y., Practice Rep., 543, where the relator asked for a mandamus to compel the defendants to open the transfer books of the corporation to the relator and to all such stockholders as may desire to transfer stock.In his opinion in that case Mitchell, J., remarked: “ The mandamus partakes of the character of a public writ, one in which the people are in some way interested ; and it has never been allowed except for the purpose of controlling those owe a public duty to the State in which it issues. This company is incorporated in Maryland, and although it has an office here and may be used here on its contracts and obligations to individuals or others, yet it does not owe allegiance or public duties to this State, or according to the laws of this State, but to the State of Maryland and according to the laws of that State. If it violates its character the remedy should be in Maryland and not here.” This New York case is entitled to the greater consideration here because mandamus is regarded in that State, as has been shown, as a prerogative writ in the supervisory sense; which view is in harmony with the King’s Bench theory and practice respecting the writ that" has also prevailed in this State.
But the case of Curtis v. McCullough, 3 Nevada, 202, is a case of especial importance to this inquiry, because in it the question of the common law power of the Courts of Nevada to grant mandamus against the ex-superintendent of a California Mining Corporation, resident in Nevada, to compel him to deliver, to his successor, the mine, books, &c., of the corporation, in his possession in Nevada, came directly before the court for its adjudication. The court held that, as the corporation was created, and its duties im*364posed solely by California, neither it, nor its officers as such had any existence in Nevada; that its superintendent was merely its agent in Nevada enforcing his individual right to be such agent against the ex-superintendent, who was also merely an unofficial person withholding the right; and that therefore mandamus was not allowable, in such a case, at common law, but only by virtue of the express terms of a Nevada statute. In their opinion the Court say: “ No judgment can be rendered here which will bind the corporation; this proceeding is simply between individuals over whom the Courts of this State have jurisdiction, but who claim their rights from a corporation; ” and the mandamus was accordingly awarded against the respondent as an unofficial person merely, and not under authority of any common law power, but exclusively under a statutory authority which the Court expressly to be “ broader than any common law power.” And yet this case was cited and much relied on, in behalf of the relator, at the argument.
Again, if private corporations can only be created by the legislative power in a State, for a public purpose in theory, are they not therefore, in a legal sense, the agents or instrumentalities of that sovereignty, exercising a portion of the sovereign powers for the benefit of the people of that State, and therefore a part of its ¡internal administration and domestic concerns? If so, then the right asserted by the relator in this case, to have a mandamus here to procure the books, contracts, etc., of a foreign corporation for the purpose of making inspection and copies thereof, if allowed, might greatly hinder and obstruct the conduct of the business of the said corporation and damage its interests, as the respondent in ¡his answer alleges, and without denial by the relator, that it would. In that case the allowance of the mandamus here would be art interference by this State with the internal administration and domestic institutions and concerns of another State; for if it be conceded that, by such a proceeding, the books, contracts, etc., of a ¡foreign corporation can be held for an instant, then they can be held indefinitely and so prevent the due performance of its functions and duties and the fulfilment of the public objects for which it was created. In the absence of a statute of Delaware authorizing such a use of mandamus by our Court, as a condition of the *365enjoyment by such foreign corporation of the comity of our State, this would surely be an unlawful use of our writ and an unwarranted exercise of judicial power! In this county, under our American system of government, it is a fundamental doctrine that the Federal Courts cannot interfere by mandamus with the administration of the internal concerns of a State; 24 How., 107 ; nor can one Sovereign State of the Union with those of another State: I Kent Com., 462; nor can a State with the administration of the Federal government; 6 Wheaton, 599. It is a presumption of law, therefore, that the Courts of one State will not assume jurisdiction by mandamus, in the absence of clear statutory authority conferring it, to enforce the corporate duties of a foreign corporation and thereby interfere with its due fulfilment of the primary object of its creation, viz., the promotion of the public good of the State of its domicile.
And here the pertinent inquiry arises: Does not the true construction of said Section 2 of Chapter 92 of our Code, from which the supervisory jurisdiction of our Superior Court by mandamus is derived, negative any claim of power to exercise it against a corporation, or its officers or agents, unless such corporation has been incorporated, or the duty sought to be enforced has been imposed by some statute of this State ? So far as this supervisory jurisdiction relates to magistrates and other officers it is limited and confined by our statute to such as are “ within this State,” to quote the precise words of said Section 2, that is, to such officers only as are created, or whose duties are imposed by this State alone. And so far as such jurisdiction over corporations is derived from said Section 2, it must likewise, in principle, and, presumably, in the intent and meaning of those who enacted it, be confined to such corporations as are created, or whose duties are imposed by this State exclusively. For the law is definitely settled that a corporation can have no legal existence outside the territorial limits of the sovereignty which created it. Nor can its officers be recognized in their official character out of the jurisdiction of the State which created the corporation, but only as are the agents of a natural person residing in another State. Custis v. McCullough, 3 Nevada, 202; Bank of Augusta v. Earle, 13 Peters, 519, 588; Paul v. *366Virginia, 8 Wallace, 181; Railroad v. Koontz, 104 United States, 11; Field on Private Corporations, sections 25, 243, 244.
It is equally well settled that a foreign corporation does not become a corporation of another State than that of its creation and domicile, by holding real or personal property or transacting a portion of its business therein. Railroad v. Koontz, 104 United States, 10, 13; B. & O. R. R. Co. v. Carey, 28 Ohio State, 208: Blackstone Manufacturing Company v. Inhabitants of Blackstone, 13 Gray, 488.
It is not sufficient for the purposes of his case, for the relator to urge that because a foreign corporation, by the comity of this State, holds property and transacts business by its agent here, therefore it is subject to our writ of mandamus. It may be true that such a corporation may thereby be served with our process, or attached, and its property real and personal within our State, made liable to execution in actions upon its contracts made in or out of Delaware. But to contend that, therefore, it, or its agents, or its property are subject to our writ of mandamus for non-performance of a corporate ' duty not imposed by our laws, is to lose sight of the distinction between an action'on contract and a mandamus proceeding. The former is employed to ¡recover satisfaction for the non-performance of an obligation touching a private interest, and due primarily to the person interested, while mandamus is a writ of sovereignty to compel the specific performance of an obligation touching a supposed public interest and due primarily to the State, and therefore employed exclusively by that sovereignty to which alone the obligation is due, whether invoked by the proper law officer of the State in the public behalf, or by some person having a private interest in its performance. When it is employed to enforce a corporate duty arising out of such an obligation to sovereignty, (and the duty to allow inspection and copies of corporate books, papers, etc., when it exists, is such a corporate duty), it must, therefore, be issued exclusively by the State creating the corporation or imposing the corporate duty. Without a corporation there can be no corporate duty. In Delaware a corporation can be created only by authority of a statute enacted in the prescribed constitutional manner. Here, it cannot be created by comity. Otherwise a foreign corporation, holding property, and *367transacting business by its agents in our State, by our comity, (which is merely the voluntary permission of the State to do so subject to its views of sound public policy), could not be excluded and denied that privilege whenever our State policy might require this, notwithstanding that the right of the State to do this is established by undoubted authority. Paul v. Virginia, 8 Wallace, 181. For, if by mere comity it could become a corporation of our State, and, like other domestic private corporations here, under obligation to the State as such, to perform its corporate functions and duties, then under the “ contract ” doctrine of the Dartmouth College case, 4 Wheat., 518, it could not be so subjected to such exclusion and denial. Accordingly, it is manifest that a foreign private corporation by holding real and personal property and transacting business as such within this State, by the comity of Delaware, does not a submit or subject itself to the law of the State in the same man- and to the same extent, in respect to such property and business, as it would be bound to do were it a corporation created by the State of Delaware, or owe obedience and subjection to the mandates of its Courts in these respects as fully as if it were a domestic corporation,” (as the majority opinion of this Court asserts) so far, at least, as respects the use of our writ of mandamus against such foreign corporation. Therefore, where a duty is sought to be enforced against a foreign corporation or its agents by mandamus in this State as a corporate duty (and it is sought as such in the pending case) it must appear to have been imposed by a Delaware legislative enactment incorporating such foreign corporation or imposing the duty as a condition of its enjoying the comity of our State.
A corporate duty, as such, does not exist, or arise “ by common law ” in this State, or elsewhere in this county, but only by statute, nor does the right to inspect, or have copies of corporate books} papers, &c., or any other rights springing from corporate duty. Since all the powers and duties of a private corporation created under and by virtue of a legislative enactment, (as the said Diamond Match Company has been, in Connecticut exclusively,) are derived from the statutory grant of such powers, the duty to allow such inspection and copies, and the corresponding right to have it performed, when these exist and are not expressly mentioned in the statutory grant, are, according to common law rules of inter*368pretation, impliedly contained in such grants as necessary incidents t d the due and proper fulfillment of the ends for which the corporation was created. Such right of inspection, etc., is, therefore, not a common law right, found outside of the statutory enactment conferring the corporate powers, etc., but within its terms and their true meaning and import as legally ascertained by means of common lqw rules of construction. Bank of Augusta v. Earle, 13 Peters, 587.
Accordingly it is evident that neither a foreign corporation, as a corporation, nor its officers, as corporate officers, can have existence in Delaware by comity, or otherwise than by appropriate legislative enactment here; and further that no corporate duty, whether to allow a right of inspection, etc., to a stockholder, or 01 ¡her right, can be due from a foreign private corporation, or its officers or agents, as a corporate duty by the common law of Delaware. The present proceeding, as the record shows, is to enforce a corporate duty, as such, against a corporate officer, as such, and when the officer and the duty (if it exists) have existence solely by force of a Connecticut statute. It is not a proceeding on the part of the relator to require the respondent to perform a duty due by h m as a person, in his individual capacity merely, but as the president of a foreign corporation and in his official capacity entirely.
But it has been insisted that, since the said respondent resided in Delaware, and had the needed books, etc., in his possession here, the Court below had jurisdiction of the cusios and the res, and, therefore, it might lawfully award the mandamus to compel the respondent to allow the required inspection and copies thereof. But since it has been shown that neither the said corporation is a corporation, nor the respondent a corporate officer thereof, in Delaware, and that the said duty sought to be enforced is not a corporate duity arising either at common law, or under any statute of this State, it follows that it must be a duty due from the respondent as a person, and • in his individual capacity, and not as an officer of said corporation. But the present proceeding is against him as president and officer, and not as an individual merely, and to perform a corporate duty and not an individual duty, and hence the claim on this ground is at variance with the alleged right as claimed of record.
*369But even if it might properly be claimed, in the pending proceeding, under the present state of the record, as a mere individual duty, because the respondent resides here and has the needed books, etc., within the jurisdiction, yet, in the absence of a statute authorizing its use for this purpose, the writ would not be allowable in view of the theory and principles heretofore stated. Custis v, McCullough, 3 Nevada, 202. It might as well be contended that the writ could lawfully be awarded to compel the agent of a non-resident individual or partnership manufacturer to allow inspection and copies of such manufacturerer’s books, etc., in his charge, when required for purposes of evidence in a suit.
A foreign corporation, having no existence without the limits of the State of its creation, neither it, nor its officers, qua officers^ can be present in Delaware. Its agents are here as individuals merely, and while its property here may be subject to execution in satisfaction of contracts made, or torts done here by its agents, neither the corporation nor its agents are liable to our mandamus to enforce for the benefit of either a resident or non-resident of Delaware any right arising from any of its corporate duties; for these are obligations due only to the foreign State which created it, and, therefore, although there may be jurisdiction over the cusios and the res, for the purposes of actions ex -contractu and ex-delicto, there is none over the corporate duty, as there must be to warrant mandamus in this State, either at common law or under our existing constitution and legislation.
This conclusion rests upon legal theories and principles which are so familiar as to seem fundamental. To these both private corporations and the writ of mandamus owe their origin, and by these they must be recognized and governed in dealing with them. These furnish the reason for the existence of the former, and the ground for the application' of the latter as the appropriate remedy for enforcing the obligations of such corporations to the State of their creation. And these, too, furnish the ancient lines of demarcation which separate and distinguish this form of remedy from all others. Disregard or destroy the distinguishing marks which indicate the established and familiar boundaries of this, or other forms of remedy, and hopeless confusion must prevail, and both lawyers and Courts become embarrassed by perplexing uncertainties.
*370Desirable as it may be liberally to extend and adapt the ancient rules and remedies of the law to the needs of modern change and progress, yet to attempt this when it inevitably leads to their transformation, or disfigurement beyond practical recognition or identification is unwarranted as it is illogical.
Apply our writ of mandamus to a case like the pending one, a id its distinctive character and limitations will be discarded, and it may then issue as well against a private person or partnership as against a public officer or a corporation ; and as well to meddle with private affairs as to superintend the public interests. The plea of supposed hardship or inconvenience may possibly induce legislative, but it should not judicial enactment in this behalf. In its use of mandamus the Court of King’s Bench in England, notwithstanding its “high and transcendent” supervisory jurisdiction, kept strictly and faithfully super adequas vias of the Common Law until a departure therefrom was authorized by legislative enactment, and the Superior Court in this State should do likewise.
To extend this investigation further is needless. In my judgment, it has conclusively demonstrated that the Superior Court, in Delaware, has not jurisdiction by mandamus over a private incorporation of exclusively foreign creation, its officers or agents, to enforce the performance of a corporate duty not imposed by any statute of this State, until our Legislature has, by further enactment, conferred such jurisdiction. In the absence of such legislation, therefore, the judgment of the court below awarding the peremptory writ was erroneous and unauthorized.
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