Somerville v. St. Louis M. & M. Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the Court. The St. Louis Mining and Milling Company is- a domestic corporation, organized under the provisions of Chapter 25, Division 5, General Laws, Compiled Statutes of 1887, wúth a capital stock of $5,000,000, represented by 500,000 shares of the par value of $10 each. The certificate of incorporation and every stock certificate issued prior to 1901 recites that the stock of the corporation is nonassessable. In 1901 a meeting of the stockholders of the corporation was held, at which 304,680 shares were represented in person, and 52,590 shares by proxy. William Mayger was present, representing in person 152,780 shares, and, with proxies held by him, voted 184,020 shares. Charles F. Mayger was present, representing in person 151,900 shares, and, with proxies held by him, voted 173,050 shares. At the time 44,000 shares of the capital stock were held in- the treasury of the company. At this meeting 357,070 shares were voted by William and Charles F. Mayger, in person and by proxies, in-favor of changing the capital stock from nonassessable to assessable stock, and' there were not any votes cast against the proposition. William Mayger, as the holder of 184,020 shares in person and by proxy, gave his consent in writing, spread upon the corporation’s records, to the change, and Charles F. Mayger, as the holder of 173,050 shares in person and by proxy, gave the like consent. Due notice was given of the meeting, and the proper certificates were prepared and filed, certifying to the change. Assuming to act upon the authority thus conferred, several assessments were levied and collected without — 273 — protest. On June 6,1912, another assessment was levied. These plaintiffs, as stockholders, refused to pay the assessment and brought this action to restrain the officers, directors and agents of the company from selling their stock upon which the assessment was delinquent. The district court refused to grant an injunction after a hearing, and plaintiffs appealed from the order. At the time the defendant corporation was organized, there were in force Chapters 25 and 26, Division 5, Compiled Statutes, above. Chapter 25 deals with the formation and government of industrial corporations generally, while Chapter 26 deals with the subject “Assessments upon the Stock of Corporations.” Section 466 of Chapter 25 provides: “The legislature may at any time alter, amend or repeal this Chapter.” Chapter 26 provides generally for levying and collecting assessments upon corporate stock. Section 512 of that chapter declares: “The provisions of this Chapter shall only apply to such corporations hereafter formed, as shall specify in its articles of incorporation the fact that the stock of such corporation shall be assessable; and any company or corporation hereafter formed, that wishes to avail itself of the provisions of this Chapter, and render its stock assessable, shall specify in its articles of incorporation, in addition to the statement now required by law, a statement to the effect that the stock of such corporation is assessable. ’' Section 2, Article XV, of our state Constitution, reads as follows: “No charter of incorporation shall be granted, extended, changed or amended by special law, * * * but the legislative assembly shall provide by general law for the organization of corporations hereafter to be created: provided, that any such laws shall be subject to future repeal or alterations by the legislative assembly.” Section 394, Civil Codes of 1895 (Rev. Codes, sec. 3809), declares: “Every grant of corporate power is subject to alteration, suspension or repeal, in the discretion of the legislative assembly.” By an Act approved March 7, 1893 (Laws 1893, p. 92), it is provided: “Any corporation heretofore formed under the laws of this state, may, by and with — 274 — the consent of the stockholders holding two-thirds of the stock of the company, in writing, spread upon the records of such corporation, render its stock assessable, under the provisions of this Chapter.” This last Act was brought forward into the Codes of 1895 as section 511 (Rev. Codes, sec. 3888), and was in full force and effect at the time the stockholders’ meeting was held in 1901. 1. The proceedings of the stockholders’ meeting are attacked, and it is said that the consent of the holders of two-thirds of the capital stock was not given to the change, (a) because the proxies held by William and Charles F. Mayger only authorized the holders to vote the stock, and did not authorize them to consent to this change; and (b) if this be so, then the holders of only 304,680 shares gave such consent. It is unnecessary to determine the effect of the proxies; for at the time the meeting was held 44,000 shares, of the capital stock were in the treasury [1] of the corporation, leaving only 456,000 shares outstanding. When the statute (sec. 511, Civil Code) speaks of two-thirds of the stock of the corporation, it refers to outstanding, votable stock. (Market St. Ry. Co. v. Hellman, 109 Cal. 571, 42 Pac. 225; 2 Cook on Corporations, 6th ed., see. 613.) The two Maygers represented in person more than two-thirds of the 456,000 shares outstanding, 'and each votéd his stock in favor of the change and consented in writing to the change. So far as disclosed by the record, the proceedings taken to render the stock assessable were taken in compliance with the law and were effective for the purpose, if the statute under which the change was sought to be made was valid. 2. Certain principles of the law relating to corporations are so well settled that, as to them, there is not any difference of opinion. (1) The charter granted by a state to corporation, when accepted, becomes a “contract” within the meaning of the contract clause of the federal Constitution. (Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629.) (2) Such contract operates in a threefold relationship, viz.: (a) Between the state and the corporation; (b) between the corporation and — 275 — its stockholders; and (c) between the stockholders inter sese. (3) A state may reserve the right to alter or amend the charter of a corporation, or to alter, amend, or repeal the laws under which the corporation was organized. And (4) the provisions of our state Constitution and the statutes referred to above constitute such a reservation of power and authority. Counsel for appellants insist, however, that this reserved [2 and 3] power can be invoked to affect the contract, only as it exists between the state and the corporate entity, and that if, by enacting section 511, Civil Code above, it was the purpose of the legislature to provide for a change in the contract so far as it exists between the corporation and its stockholders, or between the stockholders inter sese, then the Act operates to impair the obligation of such contract and is void as contravening the provisions of section 10, Article I, of the Constitution of the United States. New questions have vexed the courts and text-writers more than the one arising over the construction to be given the reservation which the states make respecting corporations organized under their respective laws. If the question was an open one in this jurisdiction, its discussion might lead to fruitful results; but in Allen v. Ajax Min. Co., 30 Mont. 490, 77 Pac. 47, the contention here made was considered at length and the entire subject fully discussed. . Our conclusion in that case was that the reserved power may be exercised, not only to alter the contract as it exists between the state and the corporate entity, but as well to alter the contract existing between the corporation and its stockholders, and the stockholders inter sese, to the extent that the authority to dispose of all the corporate property — which was denied the corporation at the time it was organized — may be conferred by subsequent legislation. With all due respect to the authorities holding differently, we see no reason for changing our position, and the decision in that case is conclusive against the appellants here, unless a distinction is to be drawn between the facts in that case and this one; for upon a parity of reasoning, if the legislature may confer upon a corporation the authority to dispose of all of its — 276 — property- — a right denied to the corporation at the time it was organized — it may likewise provide for a change in the limited liability of the stockholders, by authorizing nonassessable stock to be made assessable upon such reasonable terms as the legislature may prescribe. 3. But counsel for appellants insist that a distinction is to be drawn between the facts in the Allen Case and the facts in this one, in this: That, whereas neither the charter of the Ajax Mining Company nor its stock certificates contained any assurance that the entire property of the company would not be sold without the unanimous vote of its stockholders, the certificate of incorporation of the St. Louis Mining and Milling Company, and every stock certificate issued by it prior to the meeting in 1901, contains the solemn assurance that the stock shall be non-assessable. If our view of reserved power is correct, then we think the difference between the facts in the two cases is one of form only and does not affect the ultimate question involved. [4] The legislation in force at the time of the organization of a corporation enters into and becomes a part of the contract, to the same extent as if set forth at length in the contract; and, upon the theory which we have adopted, there was read into the charter of the Ajax Mining Company this statement, in effect: This corporation shall not without the unanimous consent of its stockholders dispose of all the corporate property, until such time as the legislature may authorize it to do so. And, upon the same theory, the recital in the charter of the St. Louis Mining and Milling Company that its .stock should be nonassessable is to be read, in the light of the reserved power, to mean: This stock shall, be .nonassessable until such time as the legislature shall provide that it shall be assessable, or until such time as it is rendered assessable pursuant to legislation authorizing such change. If our theory of the reserved power is correct, and these stipulations are to be read into the charters of these companies, it follows, as of course, that section 511, Civil Code, above, does not impair the obligation of the contract entered into when the St. Louis Mining and Milling Company accepted its charter. — 277 — Upon the authority of Allen v. Ajax Mining Co., above, the order denying plaintiffs an injunction is affirmed. Affirmed. Mr. Chief Justice Brantly concurs. Mr. Justice Smith, being absent, did not hear the argument and takes no part in the foregoing decision.