Purcell-Lexington Toll Bridge Co. v. Leeper

• Decision Date: 27 January 1931
• Docket Number: 20785.
• Citation: 296 P. 969,148 Okla. 27,1931 OK 21
• Parties: PURCELL-LEXINGTON TOLL BRIDGE CO. v. LEEPER, Secretary of State.
• Court: Oklahoma Supreme Court

296 P. 969

148 Okla. 27, 1931 OK 21

PURCELL-LEXINGTON TOLL BRIDGE CO. v. LEEPER, Secretary of State.

No. 20785.

Supreme Court of Oklahoma

January 27, 1931

Rehearing Denied March 24, 1931.

Syllabus by the Court.

Petitioner to secure mandamus must allege clear legal right on his part plain legal duty of respondent, adequacy of writ, and inadequacy of any other relief (Comp. St. 1921, § 446).

Requisite for a writ of mandamus are allegations of (1) a clear legal right on petitioner's part; (2) a plain legal duty on respondent's part, not involving the exercise of discretion; (3) adequacy of the writ and inadequacy of any other relief.

Mandamus will not lie in action against secretary of state alone to compel issuance of amended corporate charter, where there was no showing that Governor had signed, or was willing to sign such amended charter (Comp. St. 1921, § 5306, as amended by Laws 1923-24, c. 45; Comp. St. 1921, § 446).

An amended charter issued pursuant to the provisions of section 5306, C. O. S. 1921, as amended by chapter 45, Sess. Laws of 1923-24, must be signed by the Governor prior to its issuance. In the absence of proof that the Governor has signed, or is willing to sign, such an amended charter, the secretary of state cannot be compelled by mandamus in an action against the secretary of state alone to cause an amended charter to issue, signed by the Governor and attested by the seal of the state.

Mandamus should not issue to compel secretary of state to do any act which law does not specifically require him to perform (Comp St. 1921, § 446).

Section 446, Comp. Stat. 1921, authorizes a writ of mandamus to compel the performance of any act which the law specially enjoins as a duty. A writ of mandamus should not issue to compel the secretary of state to do any act which the law does not specifically enjoin upon him to perform, or by clear reasonable inference does not make it his duty to perform.

Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.

Mandamus suit by the Purcell-Lexington Toll Bridge Company against Graves Leeper, Secretary of State. From a judgment denying a peremptory writ of mandamus, plaintiff appeals.

Affirmed.

Ames Cochran, Ames & Monnet, of Oklahoma City, for plaintiff in error.

J. Berry King, Atty. Gen., and Wm. L. Murphy, Asst. Atty. Gen., for defendant in error.

ANDREWS J.

The plaintiff in error, hereinafter referred to as plaintiff, was duly incorporated under the laws of the state of Oklahoma on May 18, 1911; the articles of incorporation providing for a term of 20 years from that date. On May 23, 1929, the plaintiff, pursuant to the provisions of chapter 41 of the Session Laws of 1927, filed with the secretary of state amended articles of incorporation providing for an extension of the term of the corporation for a period of 20 years from May 23, 1929, and requested the issuance of an amended charter pursuant to the provisions of section 5306, C. O. S. 1921, as amended by chapter 45 of the Session Laws of 1923-24.

The plaintiff contended that it was entitled under the law to an amended charter, and that it was the duty of the secretary of state to cause the amended charter to issue. The secretary of state refused to issue such amended charter, and the plaintiff instituted a mandamus suit in the district court of Oklahoma county to require the secretary of state to issue the same. The Governor of the state was not made a defendant therein. The facts were agreed to, and both the plaintiff and defendant moved for judgment on the pleadings and agreed statement of facts. Judgment was entered sustaining the defendant's motion for judgment and denying the peremptory writ of mandamus, and the plaintiff appealed to this court.

Chapter 41 of the Session Laws of 1927 provides that any corporation chartered under the laws of the state of Oklahoma "may renew its charter and extend the time of its existence for a period of not exceeding twenty years at any one time" by filing amended articles of incorporation and proceeding as therein set forth. The procedure for the amending of articles of incorporation is provided by chapter 45 of the Session Laws of 1923-24, amending section 5306, C. O. S. 1921. Chapter 45, Id., provides, among other things, that any corporation organized under the laws of the state, for which a charter has been issued, may amend its articles of incorporation in any particular competent to have been embodied or inserted in the original articles of incorporation, and that thereupon the secretary of state "shall cause...