State ex rel. Steubenville Gas & Electric Co. v. Taylor

Citation55 Ohio St. 61,44 N.E. 513
CourtUnited States State Supreme Court of Ohio
Decision Date23 June 1896
PartiesSTATE ex rel. STEUBENVILLE GAS & ELECTRIC CO. v. TAYLOR, Secretary of State.

Petition to the state, on the relation of the Steubenville Gas &amp Electric Company, against S. M. Taylor, secretary of state for mandamus. Writ refused, and petition dismissed.

Mandamus. The petition shows that the relator, the Steubenville Gas & Electric Company, is a corporation organized March 19 1889, ‘ for the purpose of forming and organizing a manufacturing company under the laws of the state of Ohio, to engage in the business of manufacturing gas, electricity, and furnishing natural gas for light, heat, power, and for such and other purposes as may be used by the citizens and corporations in Steubenville, Jefferson county, Ohio, and its vicinity.’ At a meeting of the stockholders of the company held April 14, 1896, it was resolved: ‘ That the articles of incorporation of this company be, and they are hereby, amended as follows: First. By changing the name of this company to ‘ The Steubenville Gas, Electric and Traction Company.’ Second. By enlarging the objects and purposes for which this company was formed, so that it be and hereby is, authorized and empowered to acquire, own, operate, lease, and maintain a street railway in the city of Steubenville, Ohio, to be operated by electricity or other motive power, for the conveyance of passengers, freight, express and mail matter over' a route specifically described, ‘ with power to extend the lines indicated from any point or points therein to such other points or locations as may hereafter be selected either within or without or partly within and partly without said city of Steubenville.’ A duly-certified copy of the amendments was presented to the defendant, secretary of state, accompanied by a tender of the legal fee, and that officer was requested to file and record the same, and furnish relator with a certified copy thereof, which he refused to do; wherefore a writ of mandamus is asked. The cause was heard and submitted finally on the application for an alternative writ.

Under Rev.St. § 3238a (repealed 1927. See Gen.Code, §§ 8623-14, 8623-15, 8623-113), company incorporated to manufacture gas and electricity, and furnishing gas for light, heat, and power cannot amend its articles so as to become gas, electric, and traction company, with power to " acquire, own, operate, lease, and maintain a street railway."

Syllabus by the Court

1. The duty of the secretary of state, on presentation of articles of incorporation and tender of proper fees, to file and record such articles, and upon request issue a duly-certified copy thereof, is controlled by the statutes of the state, and not by the discretion of the officer.

2. The authority to amend articles of a corporation, given by section 3238a, Rev. St., is controlled by the proviso which denies the right to change substantially the original purpose of the organization.

3. To change, by amendment, a company incorporated under articles which specify that it is organized ‘ for the purpose of forming and organizing a manufacturing company under the laws of the state of Ohio, to engage in the business of manufacturing gas, electricity, and furnishing gas for light, heat, power, and for such and other purposes as may be used by the citizens and corporations in Steubenville, Jefferson county, Ohio, and its vicinity,’ to a gas, electric and traction company, with power ‘ to acquire, own, operate, lease, and maintain a street railway in the city of Steubenville, Ohio, to be operated by electricity or other motive power, for the conveyance of passengers, freight, express and mail matter,’ over a described route, and extending to such other points within or without or partly within and partly without that city as may hereafter be selected, would change substantially the original purpose for which the company was organized, and is not authorized by the statutes of the state.

R. G. Richards and J. K. Richards, for petitioner.

F. S. Monnett, Atty. Gen., and John L. Lott, Asst. Atty. Gen., for defendant.

SPEAR J.

It is urged in opposition to the application that mandamus cannot be maintained because the action of the secretary of state involves exercise of discretion, and because the proposed amendment would change substantially the original purpose of the organization.

1. Discretion of the Secretary of State. We think that the discretion to be exercised by this officer does not reach to the merits of an application for articles of incorporation, although it may be exercised as to matters of form. The foundation of corporations in this state is regulated by general laws. When the proposed incorporation shows compliance with those laws, it is entitled to articles of incorporation; if it fails to so comply, the application is to be refused upon that ground, and that is sufficient.

2. The real question, it will be perceived, is whether or not the proposed amendment would work a material change in the purpose of the company as originally organized. The statute regulating amendments is section 3238a of the Revised Statutes. That section permits any corporation incorporated under the general corporation so as to change its articles of incorporation so as to change its corporate name, or the place where it is to be located, or where its principal business is to be transacted, so as to modify, enlarge, or diminish the objects or purposes for which it is formed; or so as to add thereto anything omitted from, or which might lawfully have been provided for in such articles originally provided, however, that nothing in this supplementary section contained shall authorize a corporation, by amendment, to increase or diminish the amount of its capital stock; nor shall any corporation, by amendment, change substantially the original purposes of its organization.' The license contended for, it is urged, is conferred by the clause which permits the corporation to modify, enlarge, or diminish the...

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1 cases
  • State ex rel. Steubenville Gas & Elec. Co. v. Taylor
    • United States
    • United States State Supreme Court of Ohio
    • June 23, 1896
    ...55 Ohio St. 6144 N.E. 513STATE ex rel. STEUBENVILLE GAS & ELECTRIC CO.v.TAYLOR, Secretary of State.Supreme Court of Ohio.June 23, Petition to the state, on the relation of the Steubenville Gas & Electric Company, against S. M. Taylor, secretary of state, for mandamus. Writ refused, and peti......

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