Bruner v. Louisville Packing Co.

144 Ky. 471 | Ky. Ct. App. | 1911

Opinion ok the Court by

William Rogers Clay, Commissioner

— Affirming.

Appellee, Louisville P'acking Company, was incor-. porated on Novemer 5th, 1906, by articles of incorpora-; tion duly executed and acknowledged. Its capital stock was fixed at 4750,000.00. • Upon this capital the corporation paid to the State an organization tax of $750.00. On! July 30th, 1910, amended articles of incorporation were/ duly executed by the president and directors of the corporation pursuant to the vote of all the stockholders of the company and by their written consent, and were lodged for record in the county clerk’s office of Jefferson county, wherein appellee’s principal office and place of business was located, and a certified copy was forwarded' to appellant as Secretary of State, to he recorded in hisi office, together with the fee for recording the same. By the amended articles of incorporation the capital stock of the company was reduced from $750,000.00 to $350,-000.00, and the name of the corporation wasi changed] from Louisville Packing Company to New Louisville^ Packing Company. Appellant, as Secretary of State, declined to record the amended articles until the company bad paid the organization tax of $350.00, that is, one-tenth of one per cent on their reduced capital.

Appellee brought this action against appellant, asl Secretary of State, for the purpose of obtaining a man-damns compelling him to file and record the, amended! articles of incorporation and to issue to it his receipt and certificate showing such filing’, as required by sec-' tioms 540 and 559 of the Kentucky Statutes. Appellant’s demurrer to the petition was overruled, and the mandamus awarded. Prom that judgment this appeal is prosecuted.

Section 4225 Ky. Stats., is as follows:

“Every corporation which may be incorporated by or under the laws of this State, having a capital stock divided into shares, shall pay into the State Treasury] one-tenth of one per centum upon the amount of capital] stock which such corporation is authorized to have, and a| like tax upon any subsequent increase thereof. Such tax shall be due and payable on the incorn oration of the company and on the increase of the capital stock thereof, and no such corporation shall have or exercise any corporate powers until the tax shall have been paid, and] upon payment it shall file a statement thereof with the Secretary of State.”

This section does not provide that the same corporation shall pay an incorporation tax a second time, merely because it reduces- its capital stock; it is only when its capital stock is increased that, an additional tax is required. Counsel for the Commouwead'h concede this' proposition, but insist that appellee, by changing its name from Louisville Packing Company to New Louisville Packing Company has become a new corporation and. is, therefore, liable for the tax in question. It may be that, where there has been a change in the name of the corporation., accompanied by a substantial change in the scope, rights and powers of the corporation, the) amended articles of incorporation have the effect of! creating a new corporation. Commonwealth v. Licking Valley Building Association, 118 Ky. 791. No such case is here presented. No new rights or powers were conferred by the amended articles. The change in the name, itself, was slight. It was authorized and made in the manner pointed out by the statute. No new corporation was created. It is simply a case where the old] corporation is continued under a slightly-changed name, for exactly the same length of time, and with precisely, the same rights and powers as were provided in the original articles of incorporation. Being -the same corpomt-ion and having' paid the tax once, and there_ being nothing in the statute requiring that it be paid the second time, it follows, that the judgment of the lowerl court was proper.

Judgment affirmed.