State v. Tibbe Electric Co.

• Decision Date: 31 May 1913
• Citation: 157 S.W. 635
• Parties: STATE ex rel. FRANKLIN COUNTY v. TIBBE ELECTRIC CO.
• Court: Missouri Supreme Court

157 S.W. 635

STATE ex rel. FRANKLIN COUNTY v. TIBBE ELECTRIC CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. CORPORATIONS (§ 396) — REGULATION — FAILURE TO MAKE REPORT — ACTION FOR PENALTY — PLEADING.

A petition in the name of the state, on the relation of a county, to recover the penalty prescribed by Rev. St. 1909, §§ 3026, 3030, for a corporation's failure to file a report with the Secretary of State of the location of its principal office, the names of its president and secretary, the amount and par value of its capital stock, and the value of its property within the state, which is in the substantial language of the statute, is sufficient.

2. CONSTITUTIONAL LAW (§ 46) — DETERMINATION OF CONSTITUTIONALITY — SUFFICIENCY OF OBJECTION.

A demurrer to a petition on the ground of the unconstitutionality of the statute upon which the petition is based cannot be sustained, where the provision of the Constitution which is violated is not pointed out.

Appeal from Circuit Court, Franklin County.

Action by the State, on the relation of Franklin County, against the Tibbe Electric Company. Judgment for the defendant, and relator appeals. Reversed and remanded.

John T. Barker, Atty. Gen., and Wm. M. Fitch, Asst. Atty. Gen., for appellant. John W. Boothe, for respondent.

GRAVES, J.

This is an action to recover the penalty provided by statute for failure of defendant to make report to the Secretary of State as required by law. The cause comes to us from the circuit court of Franklin county. The petition or information reads:

"State of Missouri ex rel. Franklin County, Plaintiff, v. Tibbe Electric Company, Defendant.

"Plaintiff states that on the 1st day of June, A. D. 1909, and from that date up to the present time, defendant was, and still is, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and plaintiff states that at the times mentioned defendant was, and now is, a corporation whose stock is divided into shares, and that it was not a railroad, building and loan, or insurance corporation, nor a corporation exempted from taxation by the laws of the state of Missouri.

"Plaintiff complains of the defendant herein, and for causes of action states that defendant failed to report to the Secretary of State of the state of Missouri on the 1st day of July A. D. 1909, or within 60 days thereafter, the location of its principal business office, the name of its president and secretary, the amount of its capital stock, both subscribed and paid up, the par value of its stock at the time of making said report, the cash value of all its personal property, and of all its real estate within this state, on the 1st day of June immediately preceding, and the amount of taxes, city, county, and state, paid by said defendant in this state for the year preceding the report.

"Wherefore plaintiff prays judgment against the defendant in the sum of one thousand dollars, and the costs of this action.

                                      "W. L. Cole
                             "Prosecuting Attorney Within and for
                                Franklin County, Missouri."
                

To the petition the defendant filed a demurrer in this language:

"Now comes the defendant in the above-entitled cause, and demurs to the petition of plaintiff filed in said cause, and for grounds of said demurrer said defendant assigns the following, to wit:

"First. That said petition does not state facts sufficient to constitute any cause of action.

"Second. That the facts stated in said petition show that the said petition is founded solely on the provisions of sections 1013, 1015, 1016 and 1017, of the Revised Statutes of Missouri of 1899; and said defendant demurs to said petition upon the grounds that the provisions of said sections of said Revised Statutes are in violation of the Constitution of the state of Missouri, and therefore null and void, and therefore said petition does not state facts sufficient to constitute any cause of action."

This demurrer was sustained by the court, and, the plaintiff refusing to plead further, judgment was entered up against the plaintiff, and the appeal here is from such judgment. Sections 1013, 1015, 1016, and 1017, R. S. 1899, are now sections 3026, 3028, 3029, and 3030, R. S. 1909. We are interested now in the first and last of the four named sections...