State ex rel. Coleman v. Kansas Natural-Gas Co.

The opinion of the court was delivered by Greene, J.: It may be conceded that defendant complied with all the statutory requirements, in its application to the charter board, necessary to favorable action by that body in its behalf. This court cannot, however, in this proceeding review the action of that tribunal. The law reads: “The charter board shall hold at least one meeting each month, in the office of the secretary of state, and at such other times as may be deemed necessary, subject to call by the secretary. The board shall make a careful investigation of each application and shall inquire especially with reference to the character of the business in which the proposed corporation is to engage, and if the board shall determine that the business or undertaking is one for which a corporation may lawfully be formed, and that the applicants are acting in good faith, the application shall be granted; and the secretary of the board shall issue a certificate setting forth the fact that the persons named in the application have been authorized by the charter board to form a private corporation as set forth in the application, reciting the proposed name and character thereof. In passing upon.the application of a foreign corporation, the board shall also make special inquiry with reference to the solvency of such corporation, and for this purpose may require such information and evidence as they may deem proper. If they shall determine that such corporation is properly organized in accordance with the laws of the state, territory, or [790] foreign country under which it is incorporated, that its capital is unimpaired, and that it is organized for a purpose for which a domestic corporation may be organized in this state, the application shall be granted, and the secretary of the board shall issue a certificate setting forth the fact that the application has been granted and that such foreign corporation may engage in business in this state as hereinafter provided.” (Gen. Stat. 1901, §1263.) Whether defendant may resort to mandamus to compel the charter board to issue a certificate entitling it to engage in business in this state is an immaterial consideration. This is a proceeding in quo warranto, brought by the state because of the fact that the charter board did deny the application of defendant for a license to do business here, and, notwithstanding such action of the board, the gas company has proceeded to transact business authorized under its Delaware charter. The allegations of the answer present to us the same questions which the charter board decided adversely to defendant. Counsel for defendant call to their aid the equitable doctrine requiring a court to look upon that as done which ought to be done. In effect they ask us to sit in review of the adverse ruling of the charter board, and to hear and decide de novo the application of their client for leave to transact business in this state. An assumption of such power would overturn the clearly expressed intention of the legislature to vest in the charter board, instead of a court, the right to decide the very questions we are urged to determine. The proceeding brought against defendant in this case is collateral to the proceeding before the charter board. To this proceeding the latter is not, and cannot be made, a party. Therefore the court cannot sit in judgment on the action of the charter board in refusing defendant’s application. Suppose it were to do so. Its judgment could not be in the form of mandamus to the charter board requiring the issuance [791] of a license or permit to defendant, but could only be that the charter board should have granted the application. That, however, would not be the granting of the application by the tribunal in which the authority to make such grant resides. Defendant would still be without a license or permit to do business. The case of The State, ex rel., v. Buckland, 23 Kan. 259, is in point. Buckland was a justice of the peace, and candidate for reelection. Goit was the opposing candidate. The board of canvassers declared in favor of Goit, and issued to him a certificate of election. He filed his bond and qualified as required by law. On Buckland’s refusal to vacate the office the state instituted quo warranto proceedings against him. He set up the claim that he was in fact elected, and that he had instituted contest proceedings to retain the office. It was held that the pendency of such contest between Buckland as contestor and Goit as contestee was no defense in an action in the nature of quo warranto brought by the- state against Buckland to oust him from office. This court cannot usurp the lawful functions of the Charter board. On the federal question brought into the case by the amendment to the answer, it is established law that foreign corporations, except interstate-commerce corporations, and those organized for a federal purpose, have no right to do business nor any right of existence out of the state of their creation, except such as the legislature of the state into which they seek to migrate chooses to accord them. (The State v. Book Co., 65 Kan. 847, 69 Pac. 563; Paul v. Virginia, 75 U. S. 168, 19 L. Ed. 357; Pembina Mining Co. v. Pennsylvania, 125 id. 181, 8 Sup. Ct. 737, 31 L. Ed. 650; Phila. Fire Association v. New York, 119 id. 110, 7 Sup. Ct. 108, 30 L. Ed. 342.) In its sworn application to the charter board for a certificate entitling defendant to transact business in [792] Kansas, made by its president and secretary, the following statement appears: “The full nature and character of the business in which said corporation proposes to engage within the state of Kansas is . . . the transportation of oil and natural gas within the state of Kansas.” It appears from the answer that under its original charter defendant was incorporated for the purpose, among others, of transporting oil and gas within both the states of Kansas and Missouri. Later, on July 27, 1904, it relinquished its right to transport oil and gas in Missouri, and restricted its operations to Kansas alone. This was done by a resolution adopted by the unanimous vote of its stockholders, which reads: “(1) By striking out of section 3 of said charter the words ‘states of Missouri and Kansas’ and inserting in lieu thereof the words ‘state of Kansas,’ so that said section amended reads as follows: “The objects and purposes for which this corporation is formed are, to do any or all of the things herein set forth to the same extent as natural persons might or could do, viz.: To produce, purchase and acquire natural gas; to pipe, convey and transport natural gas from the place or places where the same is produced, purchased or acquired to such cities, towns, villages and. places in the state of Kansas as may afford convenient and satisfactory market for the same.” We find nothing in the answer or amendment thereto constituting a defense to the action. A judgment of ouster is entered against the defendant, as prayed for in the petition. All the Justices concurring.