State v. M'Grath

• Decision Date: 20 June 1887
• Citation: 92 Mo. 355,5 S.W. 29
• Parties: STATE ex rel. HUTCHISON and others v. McGRATH, Secretary of State.
• Court: Missouri Supreme Court

5 S.W. 29

92 Mo. 355

STATE ex rel. HUTCHISON and others v. McGRATH, Secretary of State.

Supreme Court of Missouri.

June 20, 1887.

1. INCORPORATION — CORPORATE NAME — SIMILARITY WITH EXISTING CORPORATION.

Under Rev. St. Mo. §§ 762, 926, providing that no certificate of incorporation shall be issued by the secretary of state to any company or association under the same corporate name and style, or in imitation of the name already assumed by another corporation, an association organized for the purpose of dealing in real estate and stocks in Kansas City, under the name of "The Kansas City Real-Estate Exchange," will not be entitled to a certificate, when there is already in existence in said city a duly-incorporated company, carrying on the same business, under the style of "Kansas City Real-Estate and Stock Exchange," as the two names are substantially the same.

2. SAME.

In determining whether a company seeking a certificate of incorporation has adopted a name that is the same as, or an imitation of, that of an existing corporation, as prohibited by Rev. St. Mo. §§ 762, 926, the secretary of state of Missouri must exercise his discretion, and he will not be compelled by mandamus to issue a certificate until it is shown that the law has been complied with by the association in the selection of its name.

Mandamus.

Crittenden, McDougal & Stiles, for relator. Dobson, Douglas & Trimble for respondent.

BLACK, J.

The relators on the tenth of March, 1887, associated themselves together under article 3, c. 21, Rev. St., for the purpose of organizing a corporation by the name of the "Kansas City Real-Estate Exchange," to be located at Kansas City. The articles of association, it is conceded, are in due form, and were duly recorded in the recorder's office. Upon a presentation of a copy of the same to the secretary of state, he declined to issue a certificate of incorporation; and the object of this application for the writ of mandamus is to compel him to make the certificate. The secretary, by his return, shows that there is another corporation duly organized and located at the same place, and for the same purpose, by the name of "Kansas City Real-Estate & Stock Exchange," to which he issued a certificate of incorporation on the twenty-first of May, 1886; and that he declined to issue a certificate to the relators because the name adopted by them is substantially the same as and an imitation of that of the previously incorporated company.

Section 762 of the first article of the statute on corporations, and which applies to all corporations, is as follows: "No certificate of its incorporation, or certificate of its change of corporate name, shall be issued by the secretary of state to any company or association — First, under the same corporate name and style as that already assumed by another corporation," etc. Section 926, which is a part of the article under which these companies in question are organized, provides in detail what the articles of agreement or association shall contain. It is then made the duty of the secretary to give a certificate that the corporation has been duly organized, and that certificate is made evidence of the corporate existence of such corporation in the courts. That section, among other things, declares that the articles of agreement shall set out "the corporate name of the proposed corporation, which shall not be the name of any corporation heretofore incorporated in this state for similar purposes, or an imitation of such name."

1. Had the name of the two corporations been precisely the same, then it is not denied but the secretary would have been bound and required to refuse the certificate under section 762; for in such case the law clearly...