State ex rel. Kinloch Telephone Co. v. Roach

REVEDLE, J. On December 5, 1896, the relator was incorporated for the purpose of engaging in the general telephone and telegraph business in the State of Missouri. Its original capital was $1,500,000, which from time to time has been increased until it is now $5,000,000. ■Neither its original nor amended articles of incorporation contained any statement of the number of years it was intended its corporate existence should continue. Its demise under these articles being near at hand, the board of directors and stockholders on June 22nd last duly adopted an amendment to its charter, extending its existence for a further period of thirty years. After the necessary preliminary steps had been taken, the proposed amendment was duly presented to the respondent and as Secretary of State, he was requested to file the same and issue his official certificate thereof. This he refused to do because relator refused to pay an organization tax of $3000, and respondent seeks by this proceeding to compel such action. It is conceded by both parties that since the duration or life of the corporation was not expressed in the articles, the time allotted it by law was twenty years, the statute so providing. Relator justifies its refusal to pay the tax demanded, upon the ground that it is not seeking to extend but merely amend its charter, and that the statute authorizing amendments requires the payment of no [440] fee or tax, except in the case where the amendment consists of an increase in the capital stock. The section relied upon is 2977, Revised Statutes 1909, and provides merely that amendments, upon being made and filed with the Secretary of State, shall become a part of the articles, but that no amendment can be made which gives any greater rights than though the subject of the amendment had been incorporated in the original articles, and furT ther that, upon an increase of capital stock, the additional amount provided by law for such increase shall be paid. The respondent denies that the extension of corporate existence is a legitimate matter or subject of amendment within the purview of the above section, and contends further that even if it be such, relator is none the less subject to the payment of the tax prescribed in section 2991, Revised Statutes 1909, which section alone, he asserts, provides authority for an extension of existence, if, as relator contends, section 2991, supra, does not apply to the subject-matter, and if, as respondent asserts, section 2977, supra, is not applicable, there is no statutory power given to corporations in this State to prolong their life. This power, however, seems not to be seriously questioned, and for a long number of years has been generally recognized and exercised, and for the purpose of this case we shall treat it as existent. Even if, as relator contends, it has power under the section authorizing amendments to make the proposed extension, it does not follow that it is not liable for the tax demanded, unless it appears that the section prescribing such tax is inapplicable to cases of its character. This section is as follows: “Sec. 2991. The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created or organized, and any corporation, including those heretofore organized and now in existence under any general or special law of this State, may accept the provisions of the' general laws of this State relating to corporations, by filing with the Secretary of State a certificate of such acceptance, signed by its president and secretary, duly authorized by its board of [441] directors and approved by a vote of three-fourths of its stockholders, at any meeting duly and legally called for. that purpose — notice of such meeting first having been given in manner and form as provided in sections 2981 and 2982 of this article, or by three-fourths of the stockholders, in writing; and upon the filing of such certificate the time of the existence of said corporation shall be extended for such period as was originally permissible to it, or as may be stated in its certificate of acceptance. But nothing herein contained shall extend or continue to any corporation organized or existing under a special law or charter, any special privilege, immunity, franchises or exemptions not possessed by corporations organized under the general laws of this State; and any corporation organized or existing under special law or charter shall, by accepting or availing itself of the provisions of this section, be deemed and held to thereby waive and surrender any and all such special privileges, immunities, franchises and exemptions, and it shall be subject to all the duties and obligations of corporations under the general law of this State; Provided, further, that the duration of such corporation shall not be continued as aforesaid, until such corporation shall pay into the State Treasury fifty dollars for the first fifty thousand or less of the capital stock of the corporation, and a further sum of five dollars for every additional ten thousand dollars of its capital stock, as provided by law: Provided, that nothing in this section contained shall be construed to authorize the renewal, continuance or extension of the charter of any company engaged in the manufacture or sale of illuminating gas. [R. S. 1899, sec. 972.] ” If that part of this section which fixes the tax is construed as applicable to corporations organized since its passage and under the general laws as well as to those organized prior thereto and under special laws, there is still no repugnance nor inconsistency between it and the one authorizing amendments, in which event the two, being in pari materia, will be construed as if their provisions were embraced in the same section. The decision, [442] therefore, of this case, depends upon the construction to be given the latter section, and whether it applies to corporations organized subsequent to its passage and under the general laws, such as was the relator. The provision in question, while enacted more than thirty years ago, has never been judicially reviewed. It has, however, been uniformly interpreted by the executive officers whose duty it has been to enforce it, and their construction has been acted upon without question for a long period of time. While this is in no sense binding upon the courts, it is entitled to some weight, where, as here, there is some doubt as -to the meaning. [State ex rel. v. Railroad, 135 Mo. 618; Ross v. Railroad, 111 Mo. 18.] Prior to the adoption of the Constitution in 1865, corporations were organized only by special act of the Legislature, and this led to “ill-advised, incongruous and dissimilar charters.” [State ex inf. v. Lindell Ry. Co., 151 Mo. l. c. 170.] It was then written into the Constitution that corporations, except municipal, should hereafter be formed, if at all, [only in pursuance of general laws, and in 1866 the General Assembly accordingly provided general laws therefor. The Constitution of 1875 extended the inhibition against the creation of corporations by special acts to municipal corporations. The manifest intention of those framing and adopting these constitutional provisions was to place the franchises and privileges of corporations on a basis 'of equality and uniformity and give to all for future operations a fair field with no favor. Legislative provisions calculated to bring specially formed corporations under the general laws were immediately enacted, so that in 1885, when the present section was enacted, we were thoroughly committed to the idea and policy of equal rights and privileges in corporations. This was evidently in the mind of the Legislature when it inserted in the section under revew .the broad and sweeping language: “Every corporation that shall hereafter be created or organized, and any corporation, including those hereto [443] fore organized and now in existence under general or special law of this State, may accept the provisions . . .” If the phrase found in the proviso that “the duration of such corporation shall not be continued as aforesaid, ’ ’ applies only to corporations organized prior to 1875, as relator contends, the segregation thus accomplished results in discrimination and does violence to the policy of equality. A corporation having spent the life which the law gave it can assert no inherent rights to further existence. Natural, not artificial, resuscitation is its relief and this comes only through the law and as it decrees. Having provided equality in all other respects it is not strange that the law would enact the same conditions of all when it comes to the matter of renewing the life. In order to construe the section as relator urges, it would be necessary to rewrite the same and strike therefrom all those provisions referring to corporations organized under the general laws and subsequent to its passage. The section specifically refers to corporations organized after its passage and under the general laws, and provides that when certain conditions are complied with, the time of the existence of such corporation's can be extended. It seems to us that in order to give full effect to the whole section, both its letter and spirit, it is necessary 'to construe the terms “such corporation,” found in the proviso, as being applicable to all the different classes of corporations expressly mentioned in the section. On a similar, though slightly different* state of facts, the Supreme 'Court of New Jersey held as we do (National Lead Co. v. Dickinson, 70 N. J. L. 596) that in order to extend the corporate existence the tax must be paid and this is in accordance with the interpretation heretofore uniformly placed upon the section by the public and executive officers. Respondent’s demurrer to relator’s petition is sustained, and the preliminary writ issued herein is quashed. Graves, C. J., and Walker, Faris and Blair, JJ., concur; Woodson and Bond, JJ., dissent.