The State ex rel. Norvell-Shapleigh Hardware Co. v. Cook

• Decision Date: 09 December 1903
• Citation: 77 S.W. 559,178 Mo. 189
• Parties: THE STATE ex rel. NORVELL-SHAPLEIGH HARDWARE COMPANY v. COOK, Secretary of State
• Court: Missouri Supreme Court

77 S.W. 559

178 Mo. 189

THE STATE ex rel. NORVELL-SHAPLEIGH HARDWARE COMPANY v. COOK, Secretary of State

Supreme Court of Missouri

December 9, 1903

Peremptory writ awarded.

Campbell & Thompson for relator.

(1) Section 8 of article 12 of the Constitution of Missouri, is merely directory, and is not mandatory, as are also sections 962 and 1328, Revised Statutes 1899. Riesterer v. Horton Land & Lumber Co., 160 Mo. 141; People v Supervisors of Chenango, 8 N.Y. 328; Miller v State, 3 Ohio St. 475; Pim v. Nicholson, 6 Ohio St. 177; Hill v. Boyland, 40 Miss. 618; McPherson v. Lanard, 29 Md. 377; Rex v Loxdale, 1 Bur. 447; State v. Matthews, 88 Mo. 121; State v. Gleason, 88 Mo. 582. (2) Said section of the Constitution is solely for the benefit of the stockholders, and the public have no interest in it. Riesterer v. Horton Land & Lumber Co., 160 Mo. 141. (3) When a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. The maxim quilibit potest renunciare juri pro se introducto, applies as well to constitutional law as to any other law. Cooley on Constitutional Limitations, pp. 214, 762; Baker v. Braham, 6 Hill 47; Lee v. Tillotson, 24 Wend. 337; In the Matter of Albany St., 11 Wend. 149; Brown v. Worcester, 13 Gray 31; State v. Mansfield, 41 Mo. 471; Sappington v. Elrod, 9 Mo.App. 581; 6 Am. and Eng. Ency. Law (2 Ed.), pp. 6, 998; Embury v. Conner, 3 N.Y. 511.

OPINION

In Banc

Mandamus.

ROBINSON C. J.

On April 24, 1903, the Norvell-Shapleigh Hardware Company, a business corporation of St. Louis, filed its petition in this court asking that a writ of mandamus issue to compel the respondent Samuel B. Cook, as Secretary of State, to issue to relator a certificate that it had complied with the law made and provided for the increase of its capital stock.

Treating the petition as an alternative writ, and waiving the issuance and service of same upon himself, the respondent filed his return thereto, which is in the nature of a demurrer. Briefly stated, respondent's position is: that he had no right to issue the certificate demanded of him by relator, because upon the face of the petition, as by the certified copy of the proceedings of the meeting of the stockholders of the relator company, required to be filed in his office before the certificate should issue, it was made affirmatively to appear that relator had failed to give the sixty days' public notice of the meeting called to vote the increase of its capital stock proposed, as required by section 8 of article 12 of the Constitution, and section 962, Revised Statutes 1899, made in pursuance thereof, which sections read as follows:

"No corporation shall issue stock or bonds, except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void. The stock and bonded indebtedness of a corporation shall not be increased, except in pursuance of general law, nor without the consent of the persons holding the larger amount in value of the stock first obtained at a meeting called for the purpose, first giving sixty days' public notice, as may be provided by law." [Sec. 8, art. 12, Const. Mo.]

The statute carrying this constitutional provision into effect reads: "The stock or bonds of a corporation shall be issued only for money paid, labor done or money or property actually received. Any corporation may increase its capital stock or its bonded indebtedness with the consent of the persons holding the larger amount in value of the stock, which consent to such increase shall be obtained at a meeting of the share holders, called for that purpose -- sixty days' notice of the time and place of such meeting and of the amount of the proposed increase of stock or bonded indebtedness having been given as hereinafter provided; but the shares of stock or bonds arising from such increase shall only be disposed of for money paid, labor done or money or property actually received. All fictitious issues or increase of stock or bonds of any corporation shall be void: Provided, however, that the bonded indebtedness of a corporation shall not be increased so that the entire amount thereof shall exceed the amount of the authorized capital, except that any railroad company may issue its bonds in excess of its capital stock for the purpose of constructing or...