State ex rel. Home Building & Loan Ass'n v. Rotwitt

Pemberton, C. J. This is an application for a writ of mandamus. The relator is a corporation, organized pursuant to the provisions of article 2, title VI, pt. 4, div. 1, of the Civil Code of Montana. It was organized with a capital stock of $5,000. The affidavit alleges a full compliance with the statute in relation to the organization of such corporations. After due organization of the corporation, the trustees met, in pursuance of section 807 of the Civil Code, and unanimously passed a resolution increasing the capital stock thereof to $1,000,000, divided into 10,000 shares of $100 each. One copy of the resolution increasing the capital stock of the corporation was presented to the clerk and recorder of Lewis and Clark county, and by him received and filed. A duly certified copy of said resolution was presented to the respondent, together with a fee of $5, with a request that he, as secretary of state, file the same in his office, in accordance with the provisions of subdivision 12, sec. 410, of the Political Code. The respondent, as secretary of state, refused to receive and file in his office said resolution increasing the capital stock of the corporation. The respondent refused to receive and file said resolution, increasing the capital stock of the corporation, because, he says, the corporation “was incorporated' with a capital stock of $5,000 in the month of November, 1895, and immediately [540] thereafter said corporation, by their trustees only, voted to increase the capital stock to $1,000,000, all of which was done for the purpose of evading the provisions of section 410 of the Political Code, thereby saving to such corporation the payment of the fee of 50 cents on each $1,000 of the capital stock of said company or corporation over and above the payment of the fee of 50 cents on the original capital stock.” The evidence taken by the referee shows that all the stockholders of the corporation, at a meeting regularly called,, voted for the resolution. The only question to be considered is whether the respondent, as secretary of state, had any discretionary power to look beyond the face of the paper presented, and to» determine, from matters outside of the paper itself, whether he would file it or not. It is not denied that the paper presented for filing contained the matter required to be stated in it by section 808 of the Civil Code, and was regular on its face. The proper fee was tendered with it. We think the respondent’s duty in the premises was simply ministerial. To go beyond the face of the paper, and inquire into and determine the motives of the relator, or its trustees or stockholders, would be to act judicially. The respondent, we think, had no authority to do so. We think these matters could only be inquired into, and determined by quo warranto proceedings, instituted by the state, to determine the right of the corporation to use and enjoy its enlarged capital. It is ordered that the writ of mandate issue as prayed for. Writ granted. De Witt and Hunt, JJ., concur.