McChesney v. Batman

Opinion by Chief Justice Hobson Affirming. By sec. 538, Ky. Stats. 1903, any number of pernsons, not less than three, may associate to form certain corporations. Then follow secs. 539 and 540, which read as follows: “Sec. 539. Such persons shall execute articles of incorporation which shall specify: (1) The name of’ the corporation, which shall be such as to distinguish, it from any other corporation engaged in the saínebusiness, or promoting or carrying on the objects, or purposes in this State. (2) The name of the city or town and county in which its principal office or-place of business is to be located. (3) The nature of the business, or objects or purposes proposed to be transacted, promoted or carried on. (4) The amount, of its capital stock, if any, and the number of shares into which the same shall be divided. (5) The names, [306] and places of residence of each of its stockholders, and the number of shares of stock subscribed by each. (6) The time when it is to commence, and the period it is to continue. (7) By what officers or persons the affairs of the corporation are to be conducted, and the time and place at which they are to be elected. (8) The highest amount of indebtedness or liability which the corporation may at any time incur. (9) Whether the private property of the stockholders, not subject by the provisions of the law under which it is organized, shall be subject to the payment of corporate debts, and if so to what extent. “Sec. 540. The articles shall- be signed and acknowledged by the parties thereto before any officer authorized to take acknowledgments to deeds, and recorded in the county clerk’s office of the county in which its principal office or place of business is to be located, and a copy thereof shall be filed and recorded in the office of the Secretary of State; and said articles, or a certified copy thereof, may be used as evidence in any action for or against such corporation; and all amendments thereto shall become a part of the original articles.” Thomas J. Batman, Thomas J. Batman, Jr., and A. S. Batman on May 17, 1905, entered into articles incorporating the Frishe Distillery Company, which they signed and acknowledged before the Jefferson county clerk and had recorded in his office. They then tendered to the appellant, as Secretary of State, a copy of the articles, with the license tax required by law, and requested him to file and record them in his office, which he refused to do, upon the ground that the articles of incorporation did not conform to the statute. They then filed their petition in the Franklin Circuit Court praying a mandamus com [307] pelling him to file and record the articles of incorporation. He demurred to the petition, and, the case being heard on the demurrer, the court awarded the mandamus as prayed, and he appeals. The only defect relied on in the articles of incorporation is that they fail to comply with subdiv. 7 of sec. 539, in that they do not show the place at which the officers of the corporation are to be elected. In all other respects it is conceded that the articles conform to the statute. The articles of incorporation explicitly state that the principal place of transacting the business of the corporation shall be Louisville, ICy. The election of the officers of the corporation is a part of its business, and must be conducted at the corporation’s principal place of business, unless it is otherwise specified. "We therefore conclude that, as that rs expressed which may be fairly implied, the articles substantially comply with the statute. It is the duty of the Secretary of State only to record in his office such articles of incorporation as the statute provides for. If articles of incorporation are tendered to him for a corporation not included in the statute, he should not accept or record them, or if the articles are not duly acknowledged, or if they fail in any substantial particular to comply with the statute, he may refuse to record them. But, where the articles of incorporation substantially comply with the statute, he has no discretion, and may be compelled by mandamus to file and record them. Judgment affirmed.