State ex rel. H. D. Lee Co. v. Bell

• Decision Date: 10 June 1946
• Docket Number: 39781
• Citation: 195 S.W.2d 492,355 Mo. 94
• Parties: State of Missouri, at the Relation of the H. D. Lee Company, Incorporated, an Incorporation, Relator, v. Wilson Bell, Secretary of State of the State of Missouri
• Court: Missouri Supreme Court

195 S.W.2d 492

355 Mo. 94

State of Missouri, at the Relation of the H. D. Lee Company, Incorporated, an Incorporation, Relator, v. Wilson Bell, Secretary of State of the State of Missouri

No. 39781

Supreme Court of Missouri

June 10, 1946

Original Proceeding in Mandamus.

Writ issued.

Charles M. Blackmar, Henry I. Eager and Kenneth E Midgley for relator; Michaels, Blackmar, Newkirk Eager & Swanson of counsel.

(1) There is no statutory authority in Missouri for collection of a domestication fee or tax upon filing by a foreign corporation of copy of charter amendment extending the duration of its corporate existence, hence none can be required or exacted.(2) The new Missouri Corporation Act imposes no time limitation on the license issued to a foreign corporation to do business in this State.Laws 1943, p. 410 secs. 96, 100, 101, 112.(3)The Act requires that a domestication tax or fee be paid only upon original admittance to do business in this State.Laws 1943, p. 410, sec. 101.(4) A lawful change in period of corporate duration is a proper charter amendment, and relator's only duty in Missouri was to file such charter amendment.Laws 1943, p. 410, Secs. 55, 106.(5) An amended certificate is required only if the charter amendment changes the corporate name or purposes, which is not true of an amendment changing corporate duration; and even then no requirement exists in Missouri law to pay again the domestication tax or fee.Laws 1943, p. 410, secs. 106, 108.(6) The rights and privileges of the new corporation Act are accorded to relator, since it was duly authorized to transact business in Missouri when the Act took effect.Laws 1943, p. 410, sec. 110.(7) The Secretary of State cannot require or exact any tax or fee for the collection of which there is no clear statutory authority.State ex rel. Cent. Sur. Ins. Corp. v. State Tax Comm.,348 Mo. 171, 153 S.W.2d 43;State v. Phillips Pipeline Co.,339 Mo. 459, 97 S.W.2d 109.;State ex rel. K.C. Power & Light Co. v. Smith,342 Mo. 75, 111 S.W.2d 513.(8) The express statutes in Missouri law assessing again the incorporation (domestic companies) and domestication (foreign companies) taxes or fees upon extension of charter duration were repealed expressly by the new Act.Secs. 5012, 5031, 5074, R.S. 1939;State ex rel. Peck Co. v. Brown,340 Mo. 1189, 105 S.W.2d 909;Laws 1943, p. 414, sec.A.(9) The statutory history clearly demonstrates that under the new Corporation Act there is no obligation to pay again the domestication tax or fee on timely filing of a charter amendment extending corporate duration.In cases of doubt, legislative intention may be determined from statutory history and statutes in pari materia.State ex rel. Klein v. Hughes,351 Mo. 651, 173 S.W.2d 877;Cummings v. K.C. Pub. Serv. Co.,334 Mo. 672, 66 S.W.2d 920;State ex rel. Columbia Natl. Bk. of K.C. v. Davis,314 Mo. 373, 284 S.W. 464.(10) Until 1927, a Missouri business corporation was limited to fifty years duration.State ex inf. v. LindellRy. Co., 141 Mo. l.c. 170;Mo. Const., 1865, Art. VIII, Sec. IV;Gen.Stat., 1866, Chap. 69, Sec. 2;R.S. 1879, Chap. 21, Art. 8;Sec. 10144, R.S. 1919;Laws 1927, p. 387.(11) The incorporation and domestication taxes or fees were originally enacted when the statutes expressly limited the period of domestic corporation duration and the period of foreign corporation license in this State; and expressly provided for payment again of these taxes or fees upon renewal or extension of such periods.R.S. 1879, Chap. 21, Sec. 708;Const., Mo.1875, Art. X, Sec. 21;Laws 1885, p. 80;Laws 1891, p. 75, sec. 3;Laws 1903, p. 212.(12) When Missouri, in 1927, first authorized perpetual charters for domestic corporations and recognized perpetual license to foreign corporations with perpetual charters, the legislature created an inequitable discrimination against corporations with charters of limited term by failing to repeal the statutes imposing these taxes or fees on extension of time by charter amendment, which inequity was remedied in the new code by repeal of such statutes.Laws 1927, p. 388, sec. 9792;State ex rel. Peck Co. v. Brown,340 Mo. 1189, 105 S.W.2d 909;Laws 1931, p. 297;Secs. 5031, 5074, R.S. 1939;Laws 1943, p. 410, secs. 102, 106.(13) Relator's charter amendment continued its corporate existence without interruption or termination, and it was not required to become again domesticated in Missouri.The effect of the amendment was to continue the corporation without alteration or break, and statutes applicable only on original admission do not apply.C., B. & Q.R. Co. v. Boyle,258 Ill. 624, 112 N.E. 260;Ohio Valley Tie Co. v. Bruner,146 S.W. 749;Lamb & Sons v. Dobson,117 Iowa 124, 90 N.W. 607;8 Fletcher on Corporations (Perm. Ed.), p. 561.(14) Relator is entitled by Missouri law to the rights and privileges accorded foreign corporations under the 1943 Act, there being no time limitation "set forth" in the certificate issued to it on original admission to do business in Missouri.Sec. 5074, R.S. 1939;Laws 1943, p. 410, Secs. 101, 110.

J. E. Taylor, Attorney General, and Aubrey R. Hammett, Jr., for respondent.

(1) The right of a foreign corporation to do business in this State depends upon the will of this State and not the law of domicile of said foreign corporation.Southern Ry. Co. v. Greene,216 U.S. 401, 54 L.Ed. 536;Marconi Wireless Telegraph Co. v. Commonwealth,218 Mass. 558, 106 N.E. 310;Baltic Mining Co. and S.S. White Dental Co. v. Commonwealth of Mass.,58 L.Ed. 127, 231 U.S. 68;Fire Assn. of Philadelphia v. New York,119 U.S. 110, 30 L.Ed. 342, 7 S.Ct. 108;Mass. Bonding & Ins. Co. v. Chorn,201 S.W. 1122, 274 Mo. 15;Lincoln Natl. Life Ins. Co. v. Read, 13 Law Week 4497;Conn. Mut. Life Ins. Co. v. Spratley,172 U.S. 602;8 Thompson on Corporations(3rd Ed.), sec. 6590, pp. 807-8.(2) Corporation Law, 1943, authorizes a domestic corporation to amend its Articles of Incorporation so as to extend its period of duration but does not authorize a foreign corporation to do likewise.Corporation Act, Laws 1943, sec. 2, p. 414;sec. 97, p. 462;sec. 108, p. 468;sec. 55, p. 440.(3) It does not impair the obligation of a contract to require relator upon expiration of its original charter, in order to continue to do business in this State, to pay fees, charges and taxes of a foreign corporation upon original entry in this State.Sec. 9792, R.S. 1919.

OPINION

Hyde, J.

Mandamus to compel the Secretary of State to file a duly authenticated amendment to relator's articles of incorporation in the State of Kansas, extending its corporate duration for 50 years from December 31, 1944.Refusal was on the ground that relator was required to again pay the same domestication fee or tax (based on capital represented) required for a foreign corporation to obtain an original certificate of authority to transact business in this state.

Relator was incorporated in Kansas, December 31, 1894, for a term of 50 years.It was issued a certificate of authority to transact business in Missouri in 1916.It filed the proper certificate in Kansas to extend its existence on January 22, 1944.(General Corporation Code of Kansas, Laws1939, pp. 261-264, Sec's. 132-141;Sec's. 17.4301 to 17.4310 Gen. Stat.Kansas 1935, 1939 Supp.pp. 144-146.)On February 1, 1944, it tendered an authenticated copy thereof to the Secretary of State of Missouri with the regular filing fee.Prior to 1943, when our new Corporation Code was adopted (Laws 1943, p. 410, Sec's. 1 to 176;Mo. Stat. Ann. 4997.1 to 4997.176), a foreign corporation was required to obtain a new certificate upon expiration of the time set forth in its original charter.(Sec. 5074, R.S. 1939, Mo. Stat. Ann.)This section provided that "upon the expiration by limitation or forfeiture of the license heretofore issued to a foreign corporation, a new certificate and license may be issued, as in cases of original admission for a period limited in its articles of association."However, this Section was repealed when the 1943 Code was adopted.

Relator contends that there is now no statutory authority for collection of a domestication tax from a foreign corporation for filing a charter amendment extending its corporate duration and that the Secretary of State cannot require it.Respondent contends that relator was only authorized to do business under its 1916 certificate for the time set forth in its original charter (citingSec. 3039, R.S. 1909 then in force); and argues that when this time expired it was without authority to continue and would be subject to the requirements of Sec's. 96-101 of the 1943 Code(Sec's. 4997.96 to 4997.101 Mo. Stat. Ann.) for original admission.

However, Section 110 of the 1943 Code(Sec. 4997.110 Mo. Stat. Ann.) provides: "Foreign corporations which have been duly authorized to transact business in this State at the time this Act takes effect, for a purpose or purposes for which a corporation might secure such authority under this Act, shall, subject to the limitations set forth in their respective certificates of authority, be entitled to all the rights and privileges applicable to foreign corporations procuring authority to transact business in this State under this Act, and from the time this Act takes effect such corporation shall be subject to all the limitations, restrictions, liabilities, and duties prescribed herein for foreign corporations procuring under this Act authority to transact business in this State."

Moreover Section 106 of the 1943 Code(Sec. 4997.106 Mo. Stat. Ann.) provides: "Each foreign corporation authorized to transact business in this State, whenever its articles of incorporation are amended, shall within sixty days thereafter file in the office of the...