246 P. 796 | Cal. | 1926
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This application is for the issuance of a writ of mandate requiring the respondent, as Secretary of State of the state of California, to receive and file in his office a duly certified copy of the certificate of incorporation of the petitioner, a corporation organized in and under the laws of the state of Delaware, together with certain other required documents, and to accept the amount of the license fee tendered therewith, all of which the respondent, as such *621
Secretary of State, is alleged to have refused to do. The said documents and fees were tendered to the respondent for his acceptance and filing as a prerequisite to the qualification of the petitioner herein, a foreign corporation, to transact business as such within the state of California. The respondent's return to the alternative writ issued herein is in the form of a demurrer to the sufficiency of the petitioner's said application. The grounds upon which the respondent bases his refusal to receive and file the petitioner's aforesaid documents or to accept its tendered fees appear upon the face of its said application in the form of a letter to the petitioner wherein the reasons for his action are set forth. They are in substance that whereas it appears upon the face of the petitioner's application that it is a foreign corporation organized and existing under the laws of the state of Delaware, and whereas it appears from its articles of incorporation which are appended to its said application that its stock capitalization is represented by shares of different par values, that is to say, of fifty thousand shares of preferred stock of the par value of ten dollars per share, of fifty thousand shares of class "A" common stock of the par value of ten dollars per share, and of five hundred shares of class "B" common stock without nominal or par value, it is not such a foreign corporation as can be permitted to qualify for the transaction of business in this state under the authority of DelMonte L. P. Co. v. Jordan,
It is a conceded fact herein that the petitioner, a corporation organized in and under the laws of the state of Delaware, had in all respects in its said organization complied with the laws of Delaware, and hence that under the laws of that state corporations such as this could be legally organized with a capital stock structure having certain shares of stock of a fixed par value and certain other shares of stock of a nominal or no par value. It may also be conceded that such a corporation, if attempted to be organized in this state with a like stock structure, would not be entitled to receive from the Secretary of State a certificate of incorporation under the rule laid down by this court in Film Producers Co. v. Jordan,
A foreign corporation, that is to say, a corporation organized under the laws of one or other of our American states, derives the right of doing business in other states than that of its creation through the application of the doctrine of comity between states. It is not necessary to go afield for authorities stating the origin of this doctrine or showing that it is deeply rooted in those fundamental principles of our nationality which found expression in our federal constitution and in the interpretation thereof by the supreme court of the United States. (See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519-538 [10 L.Ed. 274, see, also, Rose's U.S. Notes].) The doctrine has been fully recognized and clearly stated in the decisions in many states and has been well set forth in 14a Corpus Juris, page 1217, as follows: "Under principles of comity, and except as otherwise provided by constitutional or statutory provisions, a corporation created by any state or nation is permitted to enter other states, and there to exercise all legitimate powers conferred upon it and to carry on as a corporation any business not prohibited by the local laws or against local public policy. The rules of comity are subject *623
to local modification by the law-making power. But until so modified they have the controlling force of legal obligation, and it is the duty of the courts to observe and enforce them until the sovereign otherwise directs. The comity involved is the comity of the state, not of the courts, and the judiciary must be guided by the principles and policy adopted by the legislature. . . . Statutes authorizing foreign corporations to do business within the state and prescribing the terms and conditions upon which they shall be permitted to do so have been almost universally adopted, and their construction and application forms a large part of the law of foreign corporations. Upon compliance with such statutes the foreign corporation may transact business within the state as if under a franchise from the state, and ordinarily in the same manner as if it were a domestic corporation." The decisions of the courts of this state have been in harmony with the doctrine of comity as thus applied to foreign corporations, as will be seen from an examination of the following cases: Anglo-California Bank v. Field,
Approaching more immediately the question before us, we are referred to the case of State ex rel. etc. v. Sullivan etc.,
282 Mo. 261 [
Let the writ issue as prayed for.
Shenk, J., Waste, C.J., Lennon, J., Lawlor, J., and Seawell, J., concurred.
Rehearing denied.