State ex rel. and to Use of Geo. B. Peck Co. v. Brown

• Citation: 105 S.W.2d 909,340 Mo. 1189
• Decision Date: 05 June 1937
• Docket Number: 35322
• Parties: State of Missouri at the relation and to the use of Geo. B. Peck Company, a Corporation, Relator, v. Dwight H. Brown, Secretary of State
• Court: Missouri Supreme Court

105 S.W.2d 909

340 Mo. 1189

State of Missouri at the relation and to the use of Geo. B. Peck Company, a Corporation, Relator,

v.

Dwight H. Brown, Secretary of State

No. 35322

Supreme Court of Missouri

June 5, 1937

Peremptory writ denied and alternative writ quashed.

Langworthy Spencer, Terrell & Matz for relator.

(1) Taxing statutes are to be strictly construed against the taxing authority. State ex rel. Compton v. Buder, 308 Mo. 253, 271 S.W. 770; State ex rel. Ford Motor Co v. Gehner, 325 Mo. 24, 27 S.W.2d 1; State ex rel Natl. Life Ins. Co. v. Hyde, 292 Mo. 342, 241 S.W. 396; State ex rel. Kinloch Tel. Co. v. Roach, 269 Mo. 437, 190 S.W. 862. (2) Compliance with laws of 1931, page 297, is sufficient to enable a corporation formed under the General Laws of Missouri to extend its corporate existence. (a) In arriving at the intent of the Legislature it is permissible and appropriate to consider contemporaneous circumstances and the condition of the law prior to the passage of the act under consideration. State v. Eckhardt, 232 Mo. 49, 133 S.W. 321; State ex rel. Boonville v. Hackmann, 293 Mo. 313, 240 S.W. 135; Decker v. Diemer, 229 Mo. 296, 129 S.W. 936. (b) In the construction of amendatory acts it will be presumed that the Legislature intended to make a change in existing law. Holt v. Rea, 330 Mo. 1237, 52 S.W.2d 877; Reed v. Goldneck, 112 Mo.App. 310; United States v. Railroad Co., 230 F. 270; Mabie v. Fuller, 255 N.Y. 194, 174 N.E. 450. (c) The uniform course of corporate legislation in Missouri during the past decade has been toward relaxing the rigidity of the corporate laws of early years and towards rendering the corporate laws of the State attractive to corporations. Mo. Corp. Laws, p. 15; Laws 1921, pp. 264, 661; Laws 1923, pp. 315, 362; Laws 1927, p. 388; Laws 1929, p. 330. (d) The purpose of the enactment of laws of 1931, page 297, was to provide clearly and definitely a means for extension of corporate existence without payment of an organization fee or tax. To construe the act otherwise would be to render it meaningless and to make the corporation laws discriminatory in favor of corporations organized with perpetual existence. Sec. 4556, R. S. 1929; Laws 1931, p. 297.

Roy McKittrick, Attorney General, and Franklin E. Reagan, Assistant Attorney General, for respondent.

(1) The 1931 Act gave statutory sanction for extending the life of corporations whose charters had not expired. State ex rel. Equality Savs. & Bldg. Assn. v. Brown, 68 S.W.2d 55, 334 Mo. 781; Coates & Hopkins Realty Co. v. Ry. Co., 43 S.W.2d 817, 328 Mo. 1118; State ex rel. v. Davis, 284 S.W. 464, 314 Mo. 373; State v. Messino, 30 S.W.2d 750, 325 Mo. 743; State v. Naylor, 40 S.W.2d 1079, 328 Mo. 335; State ex rel. Kinlock Tel. Co. v. Roach, 269 Mo. 437, 190 S.W. 862. (2) The writ should be denied, because the petition alleges relator's refusal to pay the necessary fees due the State of Missouri. Sec. 4556, R. S. 1929; Cobbs & Mitchell v. Corporation Tax Appeal Board, 233 N.W. 386; State ex rel. Kinlock Tel. Co. v. Roach, 269 Mo. 437, 190 S.W. 862.

OPINION

Tipton, J.

This is an original proceeding in mandamus to compel the respondent, Secretary of State, to accept and file a statement amending relator's articles of association by extending its corporate existence perpetually.

The relator is a Missouri corporation, organized March 12, 1889, for a period of fifty years. Under Section 4556, Revised Statutes 1929, the fee due the State of Missouri for the extension of the corporate existence of relator is $ 475, in addition to the incidental filing fees for certificate. The relator tendered to the respondent the incidental filing fees but refused to tender or pay the fee provided for in Section 4556, supra, and for this reason the respondent refused to accept and file the amendment to articles of association for the relator. It is the relator's contention that under an act of the Legislature passed in the year 1931, Laws of Missouri 1931, page 297, a method was provided for extending its corporate existence, and as this section was silent in regard to the payment of any fees, the relator was entitled to have its corporate existence extended perpetually without the payment of fees provided for under Section 4556, supra.

The relator states the question for our determination as follows: ". . . do the provisions of Section 4556, Missouri Revised Statutes, 1929, apply to proceedings had in compliance with Laws of Missouri, 1931, page 297?" In other words, does the law of 1931 repeal Section 4556, supra?

This act, Laws of 1931, page 297, is as follows:

"AN ACT providing a method for any corporation organized or thereafter organized under the laws of this state to extend its corporate existence when the same is about to expire.

"SECTION 1. Method by which existence of corporation may be extended.

"Be it enacted by the General Assembly of the State of Missouri, as follows:

"Section 1. Method by which existence of corporation may be extended. -- The corporate existence of any corporation, now organized or hereafter to be organized, that is about to expire by limitation, may be extended for such a period as a new corporation may incorporate for, by a vote of stockholders holding three-fourths in amount of the capital stock of said corporation at any meeting duly and legally called for that purpose -- thirty days notice of such meeting first having been given by publishing once a week in some newspaper in the town, city or county in which said corporation is located, the first insertion to be not less than thirty days, the last not less than one nor more than six days previous to the day on which such meeting shall be held; but if there be no newspaper published therein, then in some newspaper published in the nearest county, and by mailing to each stockholder a written or printed notice of such meeting at his or her last known address. The form of the amendment extending corporate existence shall be executed, acknowledged and sworn to in duplicate by the president of the meeting and attested by the secretary of said meeting and filed with the secretary of state as is required in case of other amendment. In case such amendment in duplicate is signed, acknowledged and sworn to by all the stockholders the notice of such meeting may be waived. Any corporation whose corporate existence is not about to expire, but whose corporate existence is limited may take advantage of this provision and have its corporate existence changed to any stated period or perpetual, provided that the corporate existence of any corporation taking advantage of this provision shall be extended from the time of filing the amendment in the office of the secretary of state."

Thus we see there is nothing in the title or the act itself that directly repeals Section 4556, supra. If this section is not now in full force and effect, it is because it is repealed by implication. To show that the two sections are not repugnant, we quote Section 4556, supra.

"The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created or organized, and any corporation, including those heretofore organized and now in existence under any general or special law of this State, may accept the provisions of the general laws of this State relating to corporations, by filing with the secretary of state a certificate of such acceptance, signed by its president and secretary, duly authorized by its board of directors and approved by a vote of three-fourths of its stockholders, at any meeting duly and legally called for that purpose -- notice of such meeting first having been given in manner and form as provided in Sections 4546 and 4547 of this article, or by three-fourths of the stockholders, in writing; and upon the filing of such certificate, the time of the existence of said corporation shall be extended for such period as was originally permissible to it, or as may be stated in its certificate of acceptance. But nothing herein contained shall extend or continue to any corporation organized or existing under a special law or charter any special privilege, immunity, franchises or exemptions not possessed by corporations organized under the general laws of this State; and any corporation organized or existing under special law or charter shall, by accepting or availing itself of the provisions of this section, be deemed and held to thereby waive and surrender any and all such special privileges, immunities, franchises and exemptions, and it shall be subject to all the duties and obligations of corporations under the general laws of this State: Provided further, that the duration of such corporation shall not be continued as aforesaid, until such corporation shall pay into the state treasury fifty dollars for the first fifty thousand or less of the capital stock of the corporation, and a further sum of five dollars for every additional ten thousand dollars of its capital stock, as provided by law: Provided, that nothing in this section contained shall be construed to authorize the renewal, continuance or extension of the charter of any company engaged in the manufacture or sale of illuminating gas."

"Repeals by implication are not...