181 Mo. 596 | Mo. | 1904
This is an original proceeding in this court by the relator to obtain a peremptory writ of mandamus directing the Secretary of State to grant a license to the relator, a foreign corporation, organized and
The relator is a business corporation organized to carry on the business of contracting for the construction by it of buildings for others, and the construction by it for others of houses, buildings, structures and works of every description, and to have the power to acquire by purchase, lease, exchange, hire, or otherwise of lands or any interest therein, and to sell, lease, let, mortgage or otherwise dispose of such lands, and to undertake the management of such property, building and lands, and to hold, purchase, mortgage and convey real and personal property outside of the State of New Jersey and in the several States of the Únion and especially in the city of Kansas City, Missouri.
The capital stock was limited to five thousand dollars, the shares to be of the par value of $100 each; was all subscribed and paid up in full, of which Samuel J. Brown, of Kansas City subscribed for and was apportioned forty-eight shares and George J. Brown, of Kansas City and Mark W. Hatch of Newark, New Jersey, one share each.
The petition alleges that at the time of making its application for license or certificate of authority permitting it to transact business in the State of Missouri, it presented and tendered to the Secretary of State a certified copy of its articles of incorporation duly authenticated by the proper authorities of the State of New Jersey, and in addition thereto all the sworn statements required by the laws of Missouri, to-wit:
First. A statement under its corporate seal duly sworn to by Samuel J. Brown, its president, and George L. Brown, its secretary, setting forth the business of the corporation which it proposes and desires to carry on in the State of Missouri as required by the act of March 24, 1903, of the General Assembly of Missouri, a copy of which statement is attached to the petition.
Second. A statement duly sworn to by Samuel J.
Third. An affidavit by the president showing that it is a corporation organized under the laws of New Jersey; that its capital stock is $5,000, divided into fifty shares of the par value of $100 each; that all of said stock has been bona fide subscribed and all of it actually paid up, a copy of which affidavit is also attached to the petition and made a part of it.
Fourth. An affidavit of the president showing that the corporation was not and is not in contravention of the laws of Missouri against pools, trusts, and conspiracies and that it is not a member of any pool, trust, agreement, combination, confederation or understanding with any other person, or association to regulate the price of any article, etc., as required by the laws of this State, a copy of which affidavit is also attached to the petition and made a part of it.
The issuance of the alternative writ was waived and the Secretary of State filed his return in which he admits all of the allegations in the petition, but assigns as his reason for denying relator a license a proviso-of the act of 1903 (Laws 1903, p. 121), in the following words: ‘ ‘ Provided, further, that the Secretary of State shall not license any foreign corporation to do business in Missouri when it shall appear that such corporation was organized under the laws of a foreign State by citizens and residents of Missouri for the purpose of avoiding the laws of this State, as it would be a fraud upon the laws of both States and its pretended incorporators would be held as partners, and as such become liable for the debts of the alleged corporation,” and that as
It is not asserted that relator has in any particular failed to comply with the laws of New Jersey and it is not suggested that the business it proposes to transact in this State is in contravention of any law of this State; on the contrary, a reading of the articles will demonstrate that they are such as are recognized by our laws providing for the incorporation of domestic business corporations. It is conceded that the general purposes for which this company is organized are not in contravention of any law, either of New Jersey or Missouri.
Certainly it can not be urged as an objection to this corporation that all of its capital shall be invested in property in this State and subject to taxation by this State and that it shall otherwise be amenable to all the laws governing our domestic corporations. Looking to our statutory provisions for the public policy of the State it will be readily observed that we have adopted a most liberal comity toward corporations organized
If the articles of relator disclosed that it was its purpose to transact a business forbidden by our laws, organic or statutory, then it was clearly the duty of the respondent Secretary of State, to refuse it a license, but when he concedes that no such purpose appears in its charter, and that the only objection he has to granting it a license is that two of the incorporators are citizens of this State and own a majority of the stock and.that all of its business and property will be located in this State, then he is not justified in refusing to license it. The question before is not new in either Missouri or in the courts of last resort in other States or the Union.
In Demarest v. Flack, 128 N. Y.205, the defendants, who were citizens of New York, organized a corporation
“It has been urged that the easy way which our laws provide for forming corporations is in itself a reason why we should not recognize as a corporation those of our own citizens who have gone to another State for the purpose of incorporating themselves under the laws thereof, to do business in our own State as such corporation. We think there is very little force in the argument. The policy which we assume in our own State, as evidenced by her laws upon the subject of the formation of corporations, is one which looks to their ready and easy formation as a means of transacting business with an accumulation of capital and an exemption from personal liability to the largest extent consistent with reasonable supervision by the State. The facilities for incorporation offered by this State are not the result of any desire to promote their formation in other States. They are offered because of a policy on our part which urges upon the State the propriety of furnishing them as one means of controlling the business done by them and keeping it within our borders. If in
In Lancaster v. Amsterdam Co., 140 N. Y. l. c. 591, speaking of the policy of the State with reference to foreign corporations, the same court further says: “It seems to me very clear upon examination of our laws and by reference to such judicial opinions, that there, never was a time in the history of the State when a foreign corporation was prevented from entering its boundaries to transact business, which a non-resident natural person might have transacted here. What public policy is invaded, and what public interests are prejudiced, by extending to a foreign corporation, for the transaction of its business, the privilege and protection of the laws of our State, even when that business involves'the acquisition of and dealing with real property! If we are to consider the question simply in the light of a sound or good policy, there are abundant reasons for holding that it is to the public advantage that our borders should be as much open, for all lawful purposes, to foreign corporations as to natural persons. Their advent and lawful operations can not but tend to some
To the same effect is Merrick v. Van Santvoord, 34 N. Y. 208.
In Oakdale Mfg. Co. v. Garst, 18 R. I. 484 (28 Atl. 973) certain citizens of Bhode Island organized a corporation under the laws of Kentucky which conducted its business in Bhode Island. The Supreme Court of
In Hanna v. Petroleum Co., 23 Ohio St. 622, it is held: “A corporation chartered and organized in a sister State, with power to do business in Ohio as well as in its own State, may be made a party defendant to an action to replevin, in place of its agent against whom the action is brought, and recover in said action the value of the property replevied, although it had done no business in the State of its creation.” The court says: ‘ ‘ That a foreign corporation, under the present laws of Ohio, can hold property in the State, and sue and be sued in our courts, is well settled, and is perhaps not intended to be denied. The argument seems to be that this company was not_a corporation, either because it was empowered by its charter to do business outside of the State of its creation, as well as inside the State, or else, because at the time these proceedings were had, the company had done no business beyond its mere organization, in the State of Pennsylvania. We are unable to see why the incorporation should be invalidated on either or both of these grounds. The question
The Attorney-General in his brief in behalf of the Secretary of State cites the decision of the Kansas City Court of Appeals in Cleaton v. Emery, 49 Mo. App. 345, but an examination of that case will show that Judge Gill's opinion was not based upon the fact that citizens of Missouri incorporated under the laws of Colorado, but upon the fact that the corporation was not formed in compliance with the laws of Colorado, and for the further reason that the actual subscription of stock amounted to forty-three thousand dollars, whereas the capital stock was fixed at one million dollars and the articles of incorporation did not provide for the location of its general or principal office within the limits of Colorado. The Court of Appeals held that the incorporation was a fraud upon the State of Colorado, and that it was clearly in contravention of our laws to permit the said company to provide for a
As to the eases of Railroad v. Board, 6 Kan. 245, and Empire Mills v. Alston Grocery Company, 15 S. W. 200, we need only repeat what was said by the Court of Appeals of New York in Demarest v. Flack, 128 N. Y. 205: “The case of Railroad v. Board, 6 Kan, 245, simply holds that the courts of that State will not recognize a corporation formed under the laws of Pennsylvania, where the corporation is not itself permitted to do business in the State which grants its charter. It was also stated in the above case that the charter, if enacted by the Kansas Legislature, would have been void as contravening constitutional provisions. In such a ease it would scarcely be expected that a foreign State would grant greater recognition and privileges than were accorded by the State under which the corporation was formed. It might readily be supposed that no rule of comity 'compelled the recognition of a foreign corporation to do acts which are prohibited by the laws of a State to its own citizens or corporations. It is upon this principle that Empire Mills v. Alston Grocery Company was decided by the Court of Appeals of Texas and reported in 15 S. W. 200, and to which our attention has been called. The Legislature of Texas prohibited the incorporation of corporations in that State of the character of the Iowa corporation, and the court held
The case of Montgomery v. Forbes, 148 Mass. 249, is not in conflict with the conclusion we have reached, as the Massachusetts court decided in that case that the defendant had not complied with the laws of New Hampshire and hence had never become incorporated, and hence would not be recognized in Massachusetts as a corporation. With the doctrine announced in this case • we are satisfied, but it is apparent from the averments in the petition in this case admitted in the return that we have no such state of facts before us.