129 P. 529 | Or. | 1913
Lead Opinion
delivered the opinion of the court.
Two principal questions are presented: (1) Does the recital in the writ show that plaintiff has a paid-up, unimpaired cash capital equal to $100,000 gold coin of the United States? (2) Are the securities to which defendant objects such as are required by the statute? The term “capital” is used in varying senses by text-writers and in the decisions of the courts, which are well defined and distinguished in the text and notes in 5 Am.
“ ‘Capital’ and ‘capital stock’ are frequently used interchangeably; ‘capital stock’ sometimes referring to the property and assets of the corporation, and ‘capital’ to the amount paid in or to be paid in by the stockholders. In general, profits and surplus earnings do not constitute ‘capital stock,’ or ‘capital,’ when the latter term is used in the sense of the capital stock of the corporation.”
In Mechanics’ & Farmers’ Bank of the City of Albany v. Townsend, 5 Blatchf. 315 (Fed. Cas. No. 9,381), it is said that “capital” means the amount of capital fixed by charter, and does not include surplus earnings. Boon, Corporations, § 105, says that the word “capital,” as used with respect to corporations, primarily signifies the aggregate of the sums subscribed for and either paid in, or agreed to be paid in, by the stockholders.
In People ex rel. Union Trust Co. v. Coleman, et al., 126 N. Y. 433 (27 N. E. 818: 12 L. R. A. 762), it is said:
“The capital stock of a company is one thing; that of the shareholders is another and different thing. That of the company is simply its capital existing in money or property, or both; while that of the shareholders is representative, not merely of that existing and tangible capital, but also of surplus, of dividend earning power. * * While the nominal or par value of the capital stock and of the share stock are the same, the actual value is often widely different. The capital stock of the company may be wholly in cash or in property, or both, which may be counted and valued. It may have in addition a surplus, consisting of some accumulated and reserved fund, or of undivided profits, or both, but that surplus is no part of the company’s capital stock. * * The capital cannot be divided and distributed; the surplus may be. But that surplus does enter into and form a part of the share stock, for that represents and absorbs into its own value surplus as well as capital.”
“ ‘Capital stock,’ as used in this section, is frequently otherwise and as well expressed by the simple word ‘capital,’ and means the money and property with which the company carries on its corporate business. * * It is vested in the corporation as a sacred trust for the protection of its creditors. * * This money and property of the corporation constitutes the actual capital of the company, to which all persons having dealings with the corporation, by means whereof they may become its creditors or become personally liable for its debts, * * look, and have a right to look, to determine the measure of the company’s responsibility and of their security.”
In Bailey v. Clark, 21 Wall. (U. S.) 286 (22 L. Ed. 651), it is said by' Mr. Justice Field:
“When used with respect to the property of a corporation or association, the term [capital] has a settled meaning; it applies only to the property or means contributed by the stockholders as the fund or basis for the business or enterprise for which the corporation or association was formed.”
In Farrington v. Tennessee, 95 U. S. 679, 686 (24 L. Ed. 558), it is said:
“The capital stock is the money paid, or authorized or required to be paid, in as the basis of the business of the bank, and the means of conducting its operations. * * If a large surplus be accumulated and laid by, that does not become a part of it. The amount authorized cannot be increased without proper legal authority. If there be losses which impair it, there can be no formal reduction without a like sanction. No power to increase or diminish it belongs inherently to the corporation. It is a trust fund, held by the corporation as a trustee.”
In State v. Morristown Fire Association, 23 N. J. Law, 196. it is said:
The case of Sun Mutual Ins. Co. v. Mayor of NeW York, 4 Selden (N. Y.) 241, 250, holds that profits are not capital, except where, by contract or legislative act, they are directed to accumulate, as a basis of credit, and cannot be withdrawn. Undivided profits and surplus are part of the assets of the corporation while they remain, and in that sense are capital until withdrawn, but are subject to be withdrawn at any time; not so with the capital proper, which cannot be withdrawn. It is a trust fund, to stand as security to policyholders and to other creditors of the company.
Plaintiff admits that its capital stock has not all been subscribed or paid up, and seeks to show a compliance with the statute by the fact that the stock actually sold has been sold for sums above par, and that the amount realized therefrom was largely in excess of $100,000, constituting a paid-up capital of $100,000. It is alleged that 7,541 shares have been sold and fully paid up, and that other shares have been sold, though not fully paid for; but it is not shown how much has been paid, so we will assume that the 7,541 shares sold for $100,000, $24,590 of which was profit and neither capital nor capital stock within the meaning of the statute, because it is profits accumulated in the sale of stock, and subject to withdrawal at any time in dividends. The two items of interest mentioned in the statement of the assets of the company are of the same class and cannot be included as part of the $100,000 paid-up capital, which must be invested. This $100,000, mentioned in the statute, must be the trust fund that cannot be withdrawn or in any manner diverted by the corporation. It is the fund with which the corporation transacts its business, and stands as security to the policyholders. It does not include profits or surplus until they have been made capital in some legal way.
The judgment, of date November 7, 1912, and the peremptory writ of mandamus issued on January 3, 1913, are reversed, and the action is dismissed.
Reversed: Dismissed.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
“The authorized capital stock of the corporation is $100,000, divided into 10,000 shares of the par value of $10 a share; that 7,54119/„0 shares of said stock have been issued and fully paid for; that 416 shares of said stock have been subscribed for, but only partially paid for; that 55 shares have been issued and only partly paid for; that 64 shares of said stock have been subscribed for, but no payment on account of said subscription has yet been made; that 25 shares have been issued, but no cash payment made thereon; that 1898ll/30 shares of said capital stock have not been subscribed for or issued at all.”
The case was not tried in the circuit court on the demurrer alone, nor was it so submitted here, but certain facts were stipulated, which include the annual statement of the corporation to the commission, as shown by the bill of exceptions. Therefore the record before us shows that the corporation did not have a paid-up cash capital of $100,000.
“In ordinary co-partnerships, where profits, by the agreement of the partners, are directed to accumulate as a basis of credit or- of more extended operations in a particular business, they become capital; and in the case before us the legislature has provided for an accumulation to the amount of $500,000; and in addition the agents of the corporation, in 1846, determined, by a formal resolution, as they rightfully could do, that no division of the profits shall be made until the accumulated earnings shall exceed $1,000,000. These accumulations became capital.”
But, as this question is not properly before us, it is not necessary for us to decide it now.
The petition is denied.
Reversed: Rehearing Denied.