Home Bl'd'G. Asso'Cn. v. Bruner, Sec'Y. of State

• Citation: 134 Ky. 361
• Parties: Home Bldg. Ass'n v. Bruner, Secy. of State
• Decision Date: 18 June 1909
• Court: Kentucky Court of Appeals

134 Ky. 361

Home Bldg. Ass'n v. Bruner, Secy. of State

Court of Appeals of Kentucky.

June 18, 1909.

Appeal from Franklin Circuit Court.

R. L. STOUT, Circuit Judge.

Judgment for defendant, plaintiff appeals. — Affirmed.

HERBERT JACKSON for appellant.

JAMES BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for Commonwealth.

OPINION OF THE COURT BY JUDGE HOBSON — Affirming.

The Home Building Association is a corporation created under chapter 56, General Statutes 1873, on May 3, 1880, under articles filed in the county clerk's office of Kenton county. By the terms of the articles of incorporation, its corporate life was to extend for 25 years, or until May 3, 1905. On January 16, 1908 it filed in the county clerk's office of Kenton county an amendment to its articles of incorporation as directed in writing by more than three-fourths of its stockholders, extending its corporate life for 25 years from May 3, 1905. A certified copy of the amended articles was delivered to the Secretary of State, who refused to record the amendment, unless the corporation paid into the treasury of the state a tax of one-tenth of one per cent. upon its capital stock. It refused to pay the tax, and thereupon brought this suit against the Secretary of State to obtain a mandatory injunction requiring him to record the amended articles of incorporation. The Secretary of State demurred to the petition. His demurrer was sustained by the court, and, the plaintiff failing to plead further the petition was dismissed, and the association appeals.

By sections 570, 574, Ky. St. 1909, it is in effect provided that any corporation formed before the passage of the present statutes may avail itself of the provisions of the act by filing in the office of the Secretary of State a resolution adopted by its board of directors accepting the provisions of the Constitution of the state, and that the articles of such corporation may be amended in the manner provided for the amendment of the articles of incorporation of corporations organized under the act. Section 559 provides that any corporation may by consent in writing of the owners of at least two-thirds of its capital stock change or amend any of its articles of incorporation. It would follow from these provisions of the statute that the Home Building Association might amend its articles of incorporation in the manner provided by the statute during its life as a corporation. But section 561 (section 2147) provides that,...