State ex rel. Houck v. Lesueur
| Decision Date | 06 July 1898 |
| Citation | 46 S.W. 1075,145 Mo. 322 |
| Parties | State ex rel. Houck v. Lesueur, Secretary of State |
| Court | Missouri Supreme Court |
Peremptory writ denied.
M. R Smith for relator; Perry S. Rader of counsel.
(1) Whether the consolidation of two or more railroad companies under our statute creates a new company with new franchises rights, privileges and immunities is yet an open question. Kinion v. Railroad, 39 Mo.App. 385; Evans v Railroad, 106 Mo. 601; Railroad v. Georgia, 92 U.S. 665; Railroad v. State, 152 U.S. 301; Railroad v. Georgia, 25 U.S. (L. C. P. Co.) 185. The foregoing cases hold that the consolidated company is subject to all the liabilities of the old companies forming the new consolidated company; that is to say, if one of the roads entering into the consolidation be exempt from taxation by its charter, it is left unaffected by the agreement of consolidation. They also decide, that lawsuits are left unaffected pending against the old companies. (2) The new consolidated company, formed as provided by our statute out of two or more railroad companies, in the method of creation, is wholly and radically different, as the statute and all the authorities clearly show, from the method of creating railroad corporations. Kinion v. Railroad, 39 Mo.App. 385; Railroad v. State, 152 U.S. 301; Shields v. Ohio, 24 U.S. (L. C. P. Co.) 359; Jere Black's brief in the case of Railroad v. State, 96 U.S. 665. (3) Even though, it be admitted, that a new corporation, is formed by consolidating two or more railroads, under our statutes, yet, it does not follow, that the usual incorporating tax, specified in section 2544, Revised Statutes 1889, must be paid as if incorporating a railroad company in the ordinary way, for the authority to collect taxes, of any character, must be clearly given and if not given, the tax can not be collected. The power to levy and collect a tax "springs into being only upon a strict observance of the power expressly conferred" for that purpose. Railroad v. Apperson, 97 Mo. 309; State ex rel. v. Shortridge, 56 Mo. 130; State ex rel. v. Railroad, 87 Mo. 239; Cooley on Taxation [12 Ed.], p. 33; State ex rel. v. Railroad, 113 Mo. 307; State ex rel. v. St. Louis Co., 84 Mo. 233; Sewell v. Jones, 9 Pick. 412; Moseley v. Tift, 4 Fla. 402; Barnes v. Doe, 4 Ind. 132; Carondelet v. Picot, 38 Mo. 125; Rubey v. Huntsman, 32 Mo. 501; Reeds v. Morton, 9 Mo. 878; Williams v. Sanger, 10 East, 66; Marquis v. Commissioners, 6 Exch. 464. (4) There is no provision in the Constitution requiring the Secretary of State to collect a tax of any kind for incorporating, or otherwise, upon the filing in his office articles of agreement for consolidation. No tax, whatever, is provided by the Constitution or the statute, required to be paid by the railroad companies seeking to consolidate their roads, and without such a provision clearly, under the authorities cited under point (2), the Secretary is without any authority to demand any such tax whatever. Kinion v. Railroad, 39 Mo.App. 385; Cooley on Taxation [1 Ed.], p. 33; State v. Bentley, 23 N. J. L. 532.
Edward C. Crow, Attorney-General, for respondent.
(1) In the absence of legislative authority a railroad company can not consolidate with another company so as to form a single corporation. 2 Elliott on Railroads, sec. 322; Pearce v. Railroad, 21 How. 441. (2) The consolidation of different railways under the statutes of this State works a dissolution of the old companies and the creation of a new company. Railroad v. Missouri, 99 Mo. 41; Railroad v. Missouri, 152 U.S. 301; Shields v. Ohio, 95 U.S. 324; Ohio v. Sherman, 22 Ohio 411; Lauman v. Railroad, 30 Pa. St. 42; Railroad v. Maine, 96 U.S. 499; 41 Am. and Eng. Railroad cases, p. 694; Railroad v. Commissioners, 88 N.C. 519; Railroad v. Gibbes, 27 S.C. 385; Hoge v. Railroad, 99 U.S. 348. (3) Where a new company formed by consolidation comes into existence, it does so precisely as if it had been organized under a charter granted at the date of the consolidation, and is subject to any constitutional provisions then existing respecting taxation; and this has been held to be true in this State, even though one of the consolidated companies has a charter exemption from taxation. Railroad v. State, 99 Mo. 41; Railroad v. State, 152 U.S. 301; 60 Am. and Eng. Railroad cases, 362; Railroad v. Alsbrook, 110 N.C. 137; Railroad v. Alsbrook, 14 S.E. 652; State v. Railroad, 52 F. 451. (4) Legal requirement providing the payment of certain fees for filing and recording articles of incorporation is a condition precedent that must be performed before the Secretary of State has authority to issue the certified copies of the articles of incorporation. State v. Railroad, 43 N.E. 226.
OPINION
In Banc.
Mandamus.
-- This is an original proceeding in this court commenced by relator Louis Houck, owner of a majority of the stock in the three following named railway companies, to wit: Brownwood & Northwestern Railroad Company; Cape Girardeau, Bloomfield & Southern Railroad Company, and Missouri & Southeastern Railroad Company, to compel Hon. A. A. Lesueur, Secretary of State, to file the articles of consolidation of said three companies and issue certified copies of said articles of consolidation, thereby incorporating a new company, to be called the Cape Girardeau, Bloomfield & Southern Railway Company.
The relator, nor anyone for him, paid into the State treasury the regular fees provided for by the Constitution and the laws of the State of Missouri when a new railroad company is organized. The Secretary of State refused to file the articles unless the legal fees for incorporating a railroad company were paid, upon the ground that the consolidation was the legal creation of a new railroad company, and that therefore, the incorporation fees must be paid.
The issuance of the alternative writ and the service of the same was by respondent waived and the return to the alternative writ raises only the question as to whether or not the legal fees of incorporation should be paid.
Section 21 of article X of the Constitution provides:
"No corporation, company or association . . . . shall be created or organized under the laws of this State, unless the persons named as corporators shall, at or before the filing of the articles of association or incorporation, pay into the State treasury fifty dollars for the first fifty thousand dollars or less of capital stock and a further sum of five dollars for every additional ten thousand dollars of its capital stock."
This section is self-enforcing and needs no legislation to make it operative.
The consolidation of two or more railroads in this State is permitted by the following section (2567 R. S. 1889):
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