State v. Cook

• Decision Date: 06 January 1903
• Citation: 71 S.W. 829,171 Mo. 348
• Court: Missouri Supreme Court
• Parties: STATE ex rel. ST. LOUIS, K. C. & C. R. CO. v. COOK, Secretary of State.

71 S.W. 829

171 Mo. 348

STATE ex rel. ST. LOUIS, K. C. & C. R. CO. v. COOK, Secretary of State.

Supreme Court of Missouri.

January 6, 1903.

FOREIGN CORPORATIONS—STATUTORY FEES—POWERS— MANDAMUS— DEMURRER TO PETITION—HEARING ON CONSENT OF PARTIES.

1. Though the regular course of procedure in mandamus proceedings consists, on the filing of the petition, in the issuance of an alternative writ, and a hearing of the questions arising on its face by a motion to quash, yet when the parties agree to waive the issuance of the alternative writ, and consent to present the issue by a demurrer to the petition, the court will hear the matter in such form.

2. Rev. St. 1899, § 1025 (Laws 1891, p. 75), provides that foreign corporations shall not be permitted to do or continue business in the state without paying, on the proportion of the capital stock represented by their property or business in the state, incorporation taxes or fees equal to those required from similar domestic corporations, except that this shall not apply to railroad companies "which have heretofore built their lines of railway into or through the state." Held, that a foreign railroad corporation, which had prior to 1891 merely constructed a part of its proposed road within the state, was liable for the fee imposed by the statute.

3. Const. art. 10, § 21, provides that domestic business corporations shall pay $50 for the first $50,000 or less of capital stock, and a further sum of $5 for every additional $10,000 of stock. Rev. St. 1879, § 764, provides that the capital stock of domestic railroad corporations shall not be less than $10,000 for every mile of standard gauge proposed to be constructed. Section 790 authorizes foreign corporations to construct and operate railroads within the state. Rev. St. 1899, § 1025 (Laws 1891, p. 75), provides that foreign corporations shall not be permitted to do or continue business in the state without paying on the proportion of the capital stock represented by their property or business in the state incorporation taxes or fees equal to those required from similar domestic corporations. Held, that a foreign railroad corporation, which had prior to 1891 merely constructed a part of its proposed road within the state, was liable to the payment of the incorporation fee on that part of its capital stock employed in the state calculated on a basis of $10,000 for each mile of road proposed by its charter to be constructed in the state, less the sum expended in the construction of that part of its road which was constructed before the enactment of Rev. St. 1899, § 1025.

4. A foreign corporation admitted to do business in the state either by comity or by express statutory provisions can transact only the business which a domestic corporation of like character is authorized to transact.

In banc. Mandamus by the state, on the relation of the St. Louis, Kansas City & Colorado Railroad Company, against Sam B. Cook, secretary of state, to compel respondent to issue to relator a license authorizing it, as a foreign corporation, to do business in the state. Denied.

Jno. H. Overall, for relator. The Attorney General and Sam B. Jeffries, for respondent

VALLIANT, J.

The relator is a railroad company incorporated under the laws of Kansas. It has applied to the defendant, the secretary of state, for a certificate to authorize it to do business as a foreign corporation in this state, as provided by section 1025, Rev. St. 1899; but the application has been denied on the ground, among others, that the relator has not paid incorporating taxes and fees equal to those required of similar corporations organized under the laws of this state, as the statute requires, and this suit is brought to obtain a writ of mandamus to require the secretary of state to issue the license. The petition shows the following facts: That the relator was incorporated in Kansas in 1884, to construct and operate a standard-gauge railroad from a point in the western line of Seward county, Kan., through certain counties named in Kansas and Missouri to the Union Depot at Kansas City; thence through certain other counties in Missouri to the city of St. Louis. In 1887 the charter was amended, increasing the number of directors and changing the line of the proposed road, beginning in the city of St. Louis, and running through certain counties specified to Kansas City, with several other routes branching off from that and other branches,—one of which was aimed to reach Ft. Scott, Kan.; another, Ottawa, Kan.; and another, Girard, Kan. Prior to April 21, 1891 (the date of the act prescribing the terms on which a foreign corporation is entitled to a license to do business in this state), relator "had built its line of railway into this state, having theretofore built its line of railway in this state from the city of St. Louis to the town of Union, in Franklin county"; and the proportion of its capital stock represented by its property located and its business transacted in this state was $1,600,000, and on the 11th of February, 1902, the date of the application to the secretary of state for a license, that proportion had increased by expenditures extending the road to $1,939,000. That, having thus built its road into this state, relator is entitled to the certificate and license upon paying the fee of $1.50 prescribed by law for issuing the same, without paying any sum as for the quasi incorporating tax under the proviso to section 1025, which is "that the requirements of this article to pay incorporation tax or fee shall not apply to railroad companies which have heretofore built their lines of railway into or through this state." That relator had duly tendered to the secretary of state copies of its charter, and the amendment thereto, together with the affidavits of its president showing its place of business in this state, the proportion of its capital stock, as above specified, employed here, and that it was not in any pool or trust, etc. And at the same time relator tendered to the secretary of state the legal fee of $1.50 for issuing the certificate, and tendered for payment into the state treasury $825 as for the incorporating tax on $1,600,000, if it should be held that relator was liable for such tax on the amount of its capital stock invested in the road from St. Louis to Union, and the sum of $995 if it should be held that it was liable for such tax on the amount of its investment in this state up to the date of the application. That the secretary of state refused these tenders, and refused to issue the license. The prayer is for a writ of mandamus to require him to do so. The defendant, being informed of the filing of the suit, waived the issuance of an alternative writ, and demurred to the petition. The questions, therefore, for decision, are those arising out of the petition and demurrer.

1. The regular course of procedure would have been to let the alternative writ issue, and raise the questions arising on its face by a motion to quash; but as both sides have preferred to present the issues in this form, we will so consider them.

2. The main ground on which the demurrer is rested is that on the facts stated in the petition the relator is not entitled to the certificate or license demanded, because it has not paid into the state treasury the amount of the tax or fee that a railroad company asking to be incorporated under the laws of this state with the same or similar rights would be required to pay. Under section 21, art. 10, of our constitution, no corporation, unless formed solely for benevolent, religious, scientific, or educational purposes, can be created under the laws of this state until the persons seeking to be incorporated shall "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. And no such corporation, company or association shall increase its capital stock without first paying into the treasury five dollars for every ten thousand dollars of increase." Section 764, Rev. St. 1879 (we quote from the revision of 1879 because that was the law when...