(Del. -, 115 Atl. 773.) 427, 63 N. W. 588; Henry v. Babcock Messrs. James M. Satterfield and error: Statutes authorizing the inspection of corporate books, similar to the Delaware statute, are merely declaratory of the common law. Guthrie v. Harkness, 199 U. S. 148, 50 L. ed. 130, 26 Sup. Ct. Rep. 4, 4 Ann. Cas. 433; State ex rel. O'Hara v. National Biscuit Co. 69 N. J. L. 198, 54 Atl. 241; Powelson v. Tennessee Eastern Electric Co. 220 Mass. 380, 107 N. E. 997, Ann. Cas. 1917A, 102; State v. Jessup & M. Paper Co. 1 Boyce (Del.) 379, 30 L.R.A. (N.S.) 290, 77 Atl. 16; Foster v. White, 86 Ala. 467, 6 So. 88; High, Extr. Leg. Rem. p. 470; Winter v. Baldwin, 89 Ala. 483, 7 So. 734; Weihenmayer v. Bitner, 83 Md. 325, 45 L.R.A. 446, 42 Atl. 245; Wight v. Heublein, 111 Md. 649, 75 Atl. 507. The common-law right of a stockholder to inspect the books of a corporation is a qualified and not an absolute right. Varney v. Baker, 194 Mass. 239, 80 N. E. 524, 10 Ann. Cas. 989; Meysenburg v. People, 88 Ill. App. 328; Roger Ballast Car Co. v. Perrin, 88 Ill. App. 324; State ex rel. O'Hara v. Nation al Biscuit Co. 69 N. J. L. 198, 54 Atl. 241; State ex rel. Haeusler v. German Mut. L. Ins. Co. 169 Mo. App. 354, 152 S. W. 618; State ex rel. Holmes v. Doe Run Lead Co. Mo. App. 178 S. W. 298; State ex rel. Bourdette v. New Orleans Gaslight Co. 49 La. Ann. 1556, 22 So. 815; Wyoming Coal Min. Co. v. State, 15 Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. 337, 984; Com. v. Empire Pass. R. Co. 134 Pa. 237, 19 Atl. 629; Bean v. People, 7 Colo. 200, 2 Pac. 909; Buck v. Collins, 51 Ga. 391, 21 Am. Rep. 236; Webber v. Townley, 43 Mich. 534, 38 Am. Rep. 213, 5 N. W. 971. Where the facts presented a clear case of the right to inspect corporate records, even though the application was based on an express statutory provision, the courts in some states have expressly declined to say whether such right can be refused where the stockholder's motive is improper. State ex rel. Bergenthal v. Bergenthal, 72 Wis. 314, 39 N. W. 566. The writ of mandamus is not a writ of right, but a discretionary writ, based on the facts of each particular case, and, as there is no provision in our statute directing the issuance of such a writ, the court undoubtedly has some discretion as to when it shall issue, even where the statute conferring the right to inspect corporate books is mandatory in its terms. Eaton v. Manter, 114 Me. 259, 95 Atl. 948; State ex rel. Holmes v. Doe Run Lead Co. Mo. App. 178 S. W. 298; People ex rel. Britton v. American Press Asso. 148 App. Div. 651, 133 N. Y. Supp. 216; People ex rel. Althause v. Giroux Consol. Mines Co. 122 App. Div. 617, 107 N. Y. Supp. 188; People ex rel. Hunter v. National Park Bank, 122 App. Div. 635, 107 N. Y. Supp. 369. It appears from the return that the application in this case is not made for the protection of the petitioner's interest in the defendant corporation, but is wholly foreign thereto. People ex rel. Britton v. American People Press Asso. 148 App. Div. 651, 133 N. Y. Supp. 216; Powelson v. Tennessee Eastern Electric Co. 220 Mass. 380, 107 N. E. 997, Ann. Cas. 1917A, 102; Foster v. White, 86 Ala. 467, 6 So. 88; State ex rel. O'Hara v. National Biscuit Co. 69 N. J. L. 198, 54 Atl. 241. Wolcott, Ch., delivered the opinion of the court: In this state, the return to the alternative writ is conclusive, and is to be taken as true return-truth. Mandamus- for the purpose of the case. State ex rel. Brumley v. Jessup & M. Paper Co. 1 Boyce (Del.) 379, 30 L.R.A. (N.S.) 290, 77 Atl. 16. So, also, are all the allegations in the alternative writ which are not denied in the return. Bay State Gas Co. v. State, 4 Penn. (Del.) 238, 56 Atl. 1114. The plaintiff in error contends (1) that, by virtue of the provisions of § 29 of the General Corporation Law, he has an absolute, unqualified right to inspect the books in question, and that the court has no discretion in cases under the statute to deny him the aid of the remedy of mandamus in his attempt to secure the enjoyment of this right, when the corporation has, after due application by him, refused to allow the inspection; or (2) if it be conceded that there is any judicial discretion in the matter, yet the facts set forth in the return do not justify a refusal of the writ in this case. The defendant in error controverts the first proposition, contending that, notwithstanding the absolute terms of the statutory provision above quoted, the issuance of the peremptory writ in such cases nevertheless rests in the sound discretion of the court, and urges, with respect to the second proposition, thats the facts in this case address an unfavorable appeal to this discretion., We shall dispose of the points in controversy in the order in which they are above stated. With respect to the first point, it is to be observed that heretofore mandamus has always been regarded in this state as it was at common law, namely, as a writ issuable only in the exercise of a sound judicial discretion. McCoy v. State, 2 Marv. (Del.) 544, 36 Atl. 81; State ex rel. Brumley v. Jessup & M. Paper Co. supra. If the plaintiff in error succeeds in establishing his first contention, the writ of mandamus, in cases under § 29 of the General Corporation Law, must be held to be issuable as of course. And thus this extraordinary remedy will in such cases lose one of its chief characteristics, which has from the time of its original employment always adhered to it. It seems to us that if the legislature, in the enactment of § 29 of the General Corporation Law, had intended to thus alter the ancient nature of this remedy so as to make it available to suitors in all cases under this section, as freely as the common and ordinary writs that are issuable as of course, it would have so provided in express and positive terms. At common law the writ of mandamus was available to stockholders of corporations to secure to them the right of inspection of corporate books of all kinds, provided, of course, the petitioning stockholder could bring his case within the rules that controlled the courts in the exercise of their sound judicial discretion. Upon the stockholder was the burden of showing to the court, in the first instance, those special circumstances which would justify it in interposing its mandatory process in his behalf. At common law, the right to inspect corporate books. was a qualified right, and allowable only when the stockholder was actuated by motives that were lawful and proper, and by a purpose to subserve his interests as a holder of the corporate stock. And, accordingly, the petitioner was required to bring his case, by adequate averments in his petition, within the limitations of the right above indicated. But where there is such a statutory provision concerning books as we have in this state (General Corporation Law, § 29, Revised Code of 1915, 1943), the petitioner need allege in his petition nothing more than the bare essentials necessary to bring it within the statute, viz., that (a) the defendant company is a corporation; (b) that petitioner is a stockholder therein; (c) that there was a proper demand and refusal; and (d) that defendant failed (Del. —, 115 Atl. 773.) to comply with the duty imposed by the law and sought to be enforced by the proceeding. Bay State Gas Co. v. State, supra. This is the extent to which the Bay State Gas Co. Case goes. It simply disposes of a question of pleading. It does not, as was contended by the plaintiff in error, in any wise dispose of the question now before us, namely, whether the court may, in a case under the statute here involved, exercise a discretion when the facts are presented for decision on the merits. The question is, therefore, an open one in this jurisdiction. The authorities in other jurisdictions are apparently at variance with one another. Yet, a careful study of them will, we think, reveal but little conflict in the result, though there may be a lack of uniformity in the reasoning by which that result is reached. Foster v. White, 86 Ala. 467, 6 So. 88, decided in 1888, is the earliest case which we have found where the right of a stockholder to a mandamus under a statute similar to ours has been discussed. In that case, there was a petition by a stockholder for mandamus to secure from a corporation a statutory right to inspect books. A demurrer to the petition was filed on the ground, among others, that the petition failed to allege that the demand for an inspection of the books was made for any lawful purpose, nor did the petition specify any particular purpose. The question presented was, therefore, one of pleading, and in this respect is similar to the question presented in the Delaware case of Bay State Gas Co. v. State, supra. But the Alabama court, in disposing of the question before it, took occasion to express its views concerning the effect of the statute upon the common-law rule governing mandamus in such cases. Because of the frequency with which this case has been cited, as well as because of the soundness of its view, we quote freely from its language: "Section 1677 of Code 1886 de Be clares: "The stockholders of all private corporations have the right of access to, inspection and examination of, the books, records, and papers of the corporation, at reasonable and proper times.' As we do not concur in the proposition that the statute is merely declaratory of the common law, it becomes unnecessary to consider the character and extent of the right of a shareholder, in the absence of statutory regulations, to inspect and examine the books and records of the corporation of which he is a member. The statute was enacted in view of the restrictions and limitations placed by the common law upon the exercise of the right; and the purpose is to protect small and minority stockholders against the power of the majority, and against the mismanagement and faithlessness of agents and officers, by furnishing mode and opportunity to ascertain, establish, and maintain their rights, and to intelligently perform their corporate duties. Its terms are clear and comprehensive, and afford narrow room for construction. It was intended to enlarge and disembarrass the exercise of the right, rendering it consistent and coextensive with the stockholder's right, as a common owner of the property, books, and papers of the corporation, and with the duties and obligations of the managing officers, as agents and trustees. The only express limitation is that the right shall be exercised at reasonable and proper times. The implied limitation is that it shall not be exercised from idle curiosity, or for improper or unlawful purposes. In all other respects the statutory right is absolute. The shareholder is not required to show any reason or occasion rendering an examination opportune and proper, or a definite or legitimate purpose. The custodian of the books and papers cannot question or inquire into his motives. and purposes. If he has reason to believe that they are improper or illegitimate, and refuses the inspec tion on this ground, he assumes the burden to prove them such." Foster v. White was approved by the later Alabama case of Winter v. Baldwin, 89 Ala. 483, 7 So. 734. Its principle has likewise been accepted in the following cases: Weihenmayer v. Bitner, 88 Md. 325, 45 L.R.A. 446, 42 Atl. 245; Wight v. Heublein, 111 Md. 649, 75 Atl. 507; Stone v. Kellogg, 165 Ill. 192, 56 Am. St. Rep. 240, 46 N. E. 222; Rodger Ballast Car Co. v. Perrin, 88 Ill. App. 324; Meysenburg v. People, 88 Ill. App. 328; Furst v. W. T. Rawleigh Medical Co. 282 Ill. 366, 118 N. E. 763; Com. v. Empire Pass. R. Co. 134 Pa. 237, 19 Atl. 629; State ex rel. Bourdette v. New Orleans Gaslight Co. 49 La. Ann. 1556, 22 So. 815; Legendre v. New Orleans Brewing Asso. 45 La. Ann. 669, 40 Am. St. Rep. 243, 12 So. 837; State ex rel. Holmes v. Doe Run Lead Co. Mo. App. 178 S. W. 298; Wyoming Coal Min. Co. v. State, 15 Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. 339, 984 (where the right, however, was founded on a by-law rather than on a statute). The foregoing cases sustain the proposition that, where there is a statute similar to the one involved in this case, such statute is not intended to be declaratory of the commonlaw rule theretofore prevailing, but, on the contrary (as was not the case at common law), the statute gives a right to the stockholder so positive in its terms that he need not show any reason or occasion rendering an examination opportune and proper, or a definite or legitimate purpose; but though this be true, yet if the corporation or the custodian of its -to compel inspection of stock listdiscretionstatutory provision. books can show that the petitioner seeks to inspect the books from idle curiosity, for an improper or unlawful purpose, such showing constitutes a sufficient ground for a refusal to permit the attempted enjoyment of the right. This view appeals to us as sound. We are of the opinion that the right given to the stockholder by the stat ute to inspect the company's books is given to him as stockholder, and is to be exercised by him qua such. If it appears that he seeks to exercise the right for some purpose that is in no wise connected with his interest as stockholder, but is entirely foreign to such interest, the court which is asked to issue mandamus upon the corporation, to compel it to aid him in pursuing such purpose, not only has the right under the statute to deny him the writ, but it is its duty in the exercise of a sound discretion to do so. We do not conceive that the bestowing by the statute upon the stockholder of this right gives to him a privilege that is his in his individual capacity. The right by the terms of the statute is given to the "stockholder; and if it appears that it is sought to exercise the right, not as a "stockholder," but in some capacity that is purely individual and in no way germane to the relationship of stockholder to the corporation, then a case is presented which it never was the intention of the statute to provide for. Whether, in any particular case, the writ ought to be granted, will, of course, depend on the facts of each case. All that we now decide is that the statute does not confer a right so absolute and unqualified in its terms that the court may no longer exercise its sound discretion when mandamus is prayed for as an aid to the enjoyment of the right. It is still permissible under the statute for defenses to be made to the petition for the writ. Where the stockholder seeks his remedy by mandamus to get at the books of a company, relying upon a statutory right, some courts, with a strong show of reason, have been largely, if not altogether, influenced by the discretionary nature of this extraordinary remedy, which from the time of its ancient origin has always been regarded as one of its distinguishing features, to take the view that it never could have been that the legislature, in the enactment of a statute of this nature, (Del. -, 115 Atl. 773.) meant to disturb that judicial discretion, without expressly saying so. We have before adverted to this aspect of the question, and indicated our recognition of its force. In those jurisdictions where this view is particularly emphasized, the courts have declared that, notwithstanding the positive terms of the statute, it is permissible to view the application for mandamus as one addressed to the sound discretion of the court. And accordingly, in such jurisdictions, each case has been decided, not upon the theory of an absolute incontestable right in the stockholder, but upon the theory that, though the statute be absolute in its terms, there may nevertheless be reasons which, in the sound discretion of the court, are sufficient to deny the stockholder the aid of the court in the securing of his right. White v. Manter (1912) 109 Me. 408, 42 L.R.A. (N.S.) 332, 84 Atl. 890; People ex rel. Britton v. American Press Asso. (1912) 148 App. Div. 651, 133 N. Y. Supp. 216; State ex rel. Costelo v. Middlesex Bkg. Co. (1913) 87 Conn. 483, 88 Atl. 861; Withington v. Bradley (1914) 111 Me. 384, 89 Atl. 201; Eaton v. Manter, 114 Me. 259, 95 Atl. 948; Knox v. Coburn (1918) 117 Me. 409, 104 Atl. 789; Shea v. Sweetser (1920) 119 Me. 400, 111 Atl. 579. These cases rest the matter of the issuance of the writ in that sound judicial discretion which has ever attended the extraordinary remedy of mandamus. The natural consequence is that defenses may be made -at least, where mandamus is the remedy sought-to an attempt by a stockholder to enjoy the right of inspection given to him by the positive terms of the statute. Whether, therefore, the reasoning of the courts in these cases, or of the courts in such cases as Foster v. White, 86 Ala. 467, 6 So. 88, and the other cases cited by us in connection with that case, may be taken as expressing the correct point of view, is not important in the instant case, because they all arrive at the same conclusion, viz., that where the application is for mandamus, the right of inspection given by the statute may be defeated by defenses which address themselves to the sound discretion of the court. Likewise the same result is reached in New Jersey. In that state, however, the decision is based on the ground that the statute is merely declaratory of the commonlaw rule. State ex rel. O'Hara v. National Biscuit Co. 69 N. J. L. 198, 54 Atl. 241. The New Jersey court seems to stand alone in adopting this interpretation of the statute. While we are unable to go to the extent to which the New Jersey court has gone in thus holding, yet the authority in that state just referred to clearly is to the effect that, in a petition for mandamus for an enforcement of the statutory right, the application is addressed to the discretion of the court. With respect to the cases in New York, there is this to be said: that, while there would appear to be some confusion in their rulings, yet the latest case in that jurisdiction (People ex rel. Britton v. American Press Asso. 148 App. Div. 651, 133 N. Y. Supp. 216) settles the rule to be that mandamus for enforcement of the statutory right of inspection rests in the discretion of the court. In Illinois, as in New York, there seems, likewise, to have been at one time confusion, if not in the decisions, at least in the language of the opinions. But we believe the law in that state to be as laid down in Stone v. Kellogg, 165 Ill. 192, 56 Am. St. Rep. 240, 46 N. E. 222, where the supreme court of Illinois says: "We agree with the appellate court that the courts are not without power to prevent an abuse of the rights which the petitioner enjoys by virtue of his relation to the company." Following the case of Stone v. Kellogg, supra, are two later cases in the appellate court of Illinois, viz.: Venner v. Chicago City R. Co. 246 Ill. 170, 138 Am. St. Rep. 229, 92 N. E. 643, 20 Ann. Cas. 607, de |