State ex rel. Travelers' Insurance v. Rotwitt , 18 Mont. 87 ( 1896 )

Hunt, J.

The question raised by this proceeding is this : Is a foreign accident and life insurance company required to pay to the secretary of state the fees provided for in subdivision 3, § 410, Pol. Code 1895, which provides that the secretary must charge and collect for receiving and filing each certificate of incorporation the sum of 50 cents on each §1,000 of the capital stock of any company or corporation: * * * Provided, that no additional fee shall be charged for filing and recording articles of incorporation.

Chapter 1, part IV, article I, of the Civil Code of 1895, pertaining to the organization of corporations under the laws of the state, after defining for what purposes corporations may be organized, provides, by section 402, that the instrument by which a private corporation is formed is called ‘ ‘Articles of Incorporation. ’ ’ Provision is next made for what the articles must set forth, how they must be subscribed, and that, ‘ ‘upon filing and recording the articles of incorporation, in the office of the county clerk of the county in which the principal business of the company is to be transacted, and a copy thereof, certified by the county clerk, with the secretary of state, the secretary must issue to the corporation, over the great seal of the state, a certificate that a copy of the articles, containing the required statement of facts has been filed in his office; and thereupon the persons signing the articles, and their associates and successors, shall be a body politic and corporate. * * *’ ’ The life of a corporation dates from its organization. The statute points out the manner in which corporations may be organized. When this statute is complied with, the corporation is then brought into existence. The statute is plain. Upon compliance with its certain specific provisions (that is, filing and recording), the secretary must issue a certificate that a copy of the articles containing the required statement of facts has been filed; and thereupon (that is, after filing and recording, and upon the issuance of the secretary of state’s certificate that a certified copy of the articles of incorporation containing the required statement of facts has been filed), the persons signing the articles shall be a body politic and corporate. The certificate of the secretary to these facts, therefore, becomes a prerequisite to the legal formation of a corporation. (Morawetz on Private Corporations, § 27; Walker v. Thompson, 61 Me. 347; Stowe v. Flagg, 72 Ill. 397.)

For issuing this ‘ ‘certificate of incorporation’ ’ a specific fee of $3 is provided, and for “filing and receiving” each certificate of incorporation the secretary of state shall charge 50 cents on each $1,000 of the capital stock of any company or corporation; provided, that no additional fee shall be charged for filing and recording articles of incorporation.

This section refers to any corporation completely organized only by virtue of the issuance of the secretary’s certificate, and not to corporations already organized and only asking a legal right to do business within the state. Foreign corporations organized under the laws of other states or countries, unless otherwise regulated by law, are required to file in the office of the secretary of state duly authenticated copies of their charter or articles of incorporation, and a statement, as required by section 1030 et seq. (Civil Code, 1895.) This was decided in State ex rel. Aachen & Munich Fire Insurance Co. v. Rotwitt, 17 Mont. 41. The petitioner at bar concedes that it must comply with this requirement. And this is all we think it is obliged to do.

The certificate referred to in subdivision 3, of section 410, pertains to the incorporation of companies just being brought into existence. It is a certificate that a domestic corporation 3 as been formed. Foreign corporations are already organized. Their legal organization as a fact is recognized expressly by section 1030, which regulates ‘ ‘ foreign corpora-;ions,” ‘ ‘ organized ’ ’ and wishing to do business in this date. Matters relating to the formation of such companies ire controlled by the law in force at the places of their organi-sation. Section 1030 of the Civil Code does not require a ioreign corporation to file or record with the secretary of state i certificate of incorporation, or that it shall record any paper. !t is simply obliged to file as evidence of the fact of a corporate existence elsewhere, and as a condition’ precedent to the ight to business within the state, a duly-authenticated “copy >f its charter or articles of incorporation,” and a statement >f its financial condition, as provided for by the first portion >f section 1030 et seq. of the Civil Code, as heretofore inter->reted by the court. As a certificate designating an agent to eeeive process is tendered in the case at bar, with a fee of $5 or filing the same, the question of necessity of an insurance orporation filing such certificate at all is not before us. (State v. Rotwitt, supra.)

It would be a strained construction of the statute to hold that his foreign corporation, which only files a duly-authenticated opy of its charter, is included within the phrase ‘ ‘articles of icorporation” as used in section 410, subd. 3; and to require a oreign corporation, asking the privilege of doing business in íe state, to go through the forms prescribed for the formation of new corporations is against the letter of the law, and the spirit, too, we think.

The language of the various sections of the Code demonstrates that the legislative intent was not to impose severe exactions by way of fees upon solvent foreign corporations wishing to do business within the state, but to restrain the organization of corporations within the state, perhaps worthless in fact, but of apparently stupendous capital. Gathering this intent from the several expressions by way of statute, the petitioner is entitled to the relief asked. Let the writ issue as prayed for.

PembertoN, C. J., and De Witt, J., concur.