Home Fire Insurance v. Benton

Wood, J., (after stating the facts). The situs of the capital stock and surplus of a domestic corporation for the purpose of taxation is in the county where the corporation has its principal place of business. See Harris Lumber Co. v. Grandstaff, 78 Ark. 187; McDaniel v. Texarkana C. & M. Co., 94 Ark. 235, pp. 238-9. While these cases refer to other corporations than insurance corporations, the same rule applies, in ascertaining their domicile or principal place of business for the purpose of taxing their personal property. The terms “domicile” and “principal place of business, ’ ’ as used in the statutes and decisions, are synonymous. See Kirby’s Digest, § 845, and cases, supra. Our statute on the incorporation of business corporations as contained in chapter 31 of Kirby’s Digest, sections 837 to 870, inclusive, contemplates that every business corporation shall have a definite purpose; that it shall have a situs or principal place of business as its domicile, and that it shall have a name by which it may be distinguished from other corporations. But a corporation, under the law, may change its business, or its name, or its domicile. Kirby’s Digest, § § 854 and 870. All the things specified in the statute to be done as necessary for incorporation, or for the change in business, name or domicile are real requirements. Therefore, when a corporation is incorporated under a certain name, for a certain purpose, and having its domicile at a certain place these are real, and not ostensible requirements. When appellant was incorporated, Fordyce, Dallas County, Arkansas, was named in its certificate or charter of incorporation as its principal domicile. This domicile, as shown by the agreed statement of facts, was not only one in name but also in reality, for all of its business was transacted from that place, and continued to be even down to the time of the judgment from which this appeal comes, for in the agreed statement of facts it is shown that “nothing pertaining or belonging to the plaintiff had been removed from Fordyce to Bison, unless the resolution of its stockholders and the' certificate of its president and secretary and the filing and recording of its other papers as named amounted in law to the removal of its domicile and principal place of business.” Now, the removal of the domicile or principal place of business of a corporation under section 870 of Kirby’s Digest can not be effected simply by a resolution of its stockholders and the certificate of its officers and the filing and recording of its papers as specified in the stat-ate. While these are necessary, the statute also contemplates that there should be an actual removal of the place of business from the county where the corporation had formerly had its domicile to the place where it desired to make for itself a new domicile. In other words, the statute does not contemplate merely a removal on paper; there must be an actual removal and the requirements of section, 870 must be fulfilled as essentials to such removal, but the records and publications therein specified are only prima facie, and not conclusive, evidence that the corporation has removed its domicile or place of business. Our statute, section 845, provides that the certificate or charter of incorporation issued by the Secretary of State “shall be admissible in all courts of the State as prima facie evidence of due incorporation.” This certificate, among other things, .must contain the domicile of the corporation. See Kirby’s Dig., § 845. And we are of the opinion that section 870, in regárd to removal, also necessarily requires that the name of the new domicile be stated. . ' • We are aware that there are authorities to the effect that where the act under which the corporation is organized requires the principal place of business to be designated in the certificate or articles of association such designation is conclusive of the domicile of the corporation for the purposes of taxation. See Western Transp. Co. v. Scheu, 19 N. Y. App. 408; Oswego Starch Factory v. Dolloway et al., 21 N. Y. App. 449; Union Steamship Co. v. City of Buffalo, 82 N. Y. 351; Felton v. Transp. Co., 37 Oh. St. 450; Desty on Taxation of Corporations, Yol. 1, p. 341. But we are of the opinion that the designation of the principal place of business or domicile in the charter, under our statute, in the absence of a provision making such designation conclusive evidence of its domicile for purposes of taxation, should not be held to be conclusive, but only '.prima facie evidence of such principal place-of business; that so far ak the'corporation itself is Concerned, 'having made the statement, it should be bound by it as to its situs as against any who may have ácted upon such statement in good faith, but that it should not be binding upon the State or any others who were not parties to it. We may say of our statute in regard to the place of business what the Supreme Court of New Hampshire said in Woodsum Steamboat Co. v. Town of Sunapee, 69 Atl. 577: “If nothing was done except to hold stockholders’ meetings and make records of their proceedings, the corporation would not carry on the business for which it was formed. * * * It requires the incorporators to disclose the actual situs of their proposed business. This duty is not performed by stating an imaginary situs. The location of the business is not changed by such an act. It is very likely true that the corporation would not thereafter be heard to deny that its situs was as it had stated, especially if others had acted upon the statement in good faith. (Galveston R. R. Co. v. Cowdrey, 11 Wal. (U. S.), 459, 20 L. Ed. 199), but this would be far from saying that its representation was binding upon those who were in no way parties to it. ’ ’ In Detroit Transp. Co. v. Board of Assessors, 91 Mich. 382, the court said: “The term ‘for business,’ used in the statute, can not be limited to so narrow a construction as to say that it means simply the annual meeting of the stockholders or a meeting of directors. It must be held that the Legislature used the term in its ordinary significance, and intended it to refer to the business in which the corporation was engaged.” If appellant’s contention be correct a corporation would “have the power to fix conclusively the place of its principal office or place of business falsely to evade taxation in the place where its principal office or place of business actually and really is, when no other taxpayer has such right or power,” and in so doing to violate the uniform rule of taxation required by the Constitution. Const. of Ark., art. 16, sec. 5; Milwaukee Steamship Co. v. City of Milwaukee, 83 Wis. 590, 53 N. W. 839. See also Teagan Transp. Co. v. Board of Assessors, 139 Mich. 1, 111 Am. St. Rep. 391. In Georgia Fire Ins. Co. v. Cedartown, 134 Ga. 87, it is held that the principal office of a domestic corporation as governing the situs of its personal property for purposes of taxation is at the place where the business of the corporation is transacted, though meetings of stockholders and directors are held at another place which a by-law declares to be the principal office. That principle is applicable here. 19 Am. & Eng. Ann. Cases, p. 954, 134 Ga. 87; 1 Cooley on Taxation, 673. We are of the opinion that sound reason and the weight of authority support the view we have expressed, and therefore the court did not err in finding “that the plaintiff had not in fact removed its place of business from Fordyce, Dallas County, Arkansas, to Bison, Cleveland County, Arkansas, at the time of the assessment complained of in this cause. ’ ’ The judgment of the court dismissing appellant’s complaint for want of equity was therefore correct. The judgment of the court was correct for the further reason that the agreed statement of facts shows that appellant, before applying to the chancery court for a restraining order against the appellee, had appealed to the circuit court of Dallas County to relieve it from the alleged illegal assessment, and the case was still pending in that court. That court had power to make any orders that might be necessary to protect the rights of the appellant pending the litigation. The appellant’s remedy was therefore adequate and complete at law, and the law court had assumed jurisdiction before the proceedings here were instituted. The judgment is, therefore, correct, and it is affirmed.