State v. Roach

• Decision Date: 29 November 1916
• Docket Number: No. 19991.,19991.
• Citation: 190 S.W. 862,269 Mo. 437
• Parties: STATE ex rel. KINLOCH TELEPHONE CO. v. ROACH, Secretary of State.
• Court: Missouri Supreme Court

190 S.W. 862

269 Mo. 437

STATE ex rel. KINLOCH TELEPHONE CO. v. ROACH, Secretary of State.

No. 19991.

Supreme Court of Missouri. In Banc.

November 29, 1916.

Rehearing Denied December 21, 1916.

Original application for mandamus by the State, on the relation of the Kinloch Telephone Company, against Cornelius Roach, Secretary of State. Demurrer to the petition sustained, and preliminary writ quashed.

Wm. R. Orthwein, of St. Louis, for relator. John T. Barker, Atty. Gen., and W. T. Rutherford, Asst. Atty. Gen., for respondent.

REVELLE, J.

On December 5, 1896, the relator was incorporated for the purpose of engaging in the general telephone and telegraph business in the state of Missouri. Its original capital, was $1,500,000, which from time to time has been increased until it is now $5,000,000. Neither its original nor amended articles of incorporation contained any statement of the number of years it was intended its corporate existence should continue. Its demise under these articles being near at hand, the board of directors and stockholders on June 22d last duly adopted an amendment to its charter extending its existence for a further period of 30 years. After the necessary preliminary steps had been taken, the proposed amendment was duly presented to the respondent, and, as secretary of state, he was requested to file the same and issue his official certificate thereof. This he refused to do because relator refused to pay an organization tax of $3,000, and respondent seeks by this proceeding to compel such action.

It is conceded by both parties that, since the duration or life of the corporation was not expressed in the articles, the time allotted it by law was 20 years, the statute so providing. Relator justifies its refusal to pay the tax demanded upon the ground that it is not seeking to extend, but merely amend, its charter, and that the statute authorizing amendments requires the payment of no fee or tax, except in the case where the amendment consists of an increase in the capital stock. The section relied upon is section 2977, R. S. 1909, and provides merely that amendments, upon being made and filed with the secretary of state, shall become a part of the articles, but that no amendment can be made which gives any greater rights than though the subject of the amendment had been incorporated in the original articles, and, further, that upon an increase of capital stock the additional amount provided by law for such increase shall be paid.

The respondent denies that the extension of corporate existence is a legitimate matter or subject of amendment within the purview of the above section, and contends further that, even if it be such, relator is none the less subject to the payment of the tax prescribed in section 2991, R. S. 1909, which section alone, he asserts, provides authority for an extension of existence. If, as relator contends, section 2991, supra, does not apply to the subject-matter, and if, as respondent asserts, section 2977, supra, is not applicable, there is no statutory power given to corporations in this state to prolong their life. This power, however, seems not to be seriously questioned, and for a long number of years has been generally recognized and exercised, and for the purpose of this case we shall treat it as existent. Even if, as relator contends, it has power under the section authorizing amendments to make the proposed extension, it does not follow that it is not liable for the tax demanded, unless it appears that the section prescribing such tax is inapplicable to cases of its character. This section is as follows:

"Sec. 2991. 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 2981 and 2982 of this article, or by three-fourths of the stockholders, in writing; and upon the filing...