Untitled Texas Attorney General Opinion ( 1944 )

-OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
*moYcm smA=ms
Arrom”w.”
G&S”CL- .
Honorable D. 6. Oreer
Stata Highway Engineer
Texas Highway Department
Austin 26, Texas
Dear Ur. Oreerr
I.
recent date, whioh
the legal registra-
truokiw oorporatioa derrigaatier Town
: ; .~ Rrinoipal oi'fioe admittedly ia in B County. '.
"It is our.thougE that under the oiroumetanoee.
the ‘iruoking oorporation 0hould register ita motor vo-
hiolea in B county, the county in whloh it admittedly
maintain8 ite prlnoipal plaoe o? buslneae.a
~roti your question aod la order to eimplity our
wmer, we assume that tha oorporation in qusation ha8 the sole
legal title to, r&bt of poaaeaolon and oontrol OS said motor
vehlalsa> This leaves us the taek of detereinlng the county
in which the owner (the eorpor’;!tion in queetion) resides, be
i8 provided in resgeot ta regirtration of inotor veblolea in
mtiole 6676~-2, Vsrnonia Auuotated Clvll :Xatutes, 1925. Said
Art~ole provide81
w3very owner of a motor vehlole, trailer
or seal-trailer wed or to be used upon the pub110
highways oi this State shall applg laoh year to the
3tate Kiixhwav Deuartaent throuuh tlm Counter Tax Col-
leotor oi tbir o&nty ia whioh iio resides fir tin re-
glafratloa o? each suoh vehiole owued or oontrolled
by hla for the enrulng or ourreat oalenda$ yew or
unexpired portion thereoi; * * *” (Unders?oriw ourr)
i-4 automobiles owner 1s held required to re$tster
automobile in aouaty of owaer@a reaidenos, aa against oontaatloa
auto&bile oould her registered In any oounty within at ate. QP
f. State, (Crfm. kpp.) 94 3. *. (2d) 180.
It is a well settled rule of 1s~ in this rtate that
a oorporation ia a “person” withia the meaning of thst tera aa
uae$ in oonstltutionrl and statutory provlsionr. 701. 10, Tax.
Jur., Q. 655, snd oaaea there olted,
mtiole 1304, Seotion 3, Vernon’s Annotated Civil
atutes, 1925, Wrequirea the lnoorporatora tg ‘state, in the
ProWsed oharter, the plvoa or places where tin busiaesa of t~he
ktmided oorgoratioa 1s to be trsnsaotsd. This m~ana, not that
the charter isl required to atate the pl*oa whbre-:t$e prinolpal
Orri0e iii to beg looated, but that thb 0rriOe must be, eotablirhed
and !mintained:‘.wfthln the limits of the eta.t@.’ 10 Tax. Jur..,
631.
W~tha abaenoe of express atatutory piwisiaa ii%-
ia8 the lociality or the reridenoe or a oorpar:ition for partiouL~:plp
QuWoaea withIn the state by which it was oreatsd, the gerbral ‘,
rule 18 that its residence 1s ‘where itr, prlnolpsl office or pltlce
or businetss ir .” 13 ;~ner. Jur., pY.ge 28%.
322
fbnor288 S.W. 576, and oases therein cited; Sanders
v. F.srmarst State Bank, (Cir. ~pp.)‘, 288 S. Vi, 635.
In order to determine the county of residence, we
first must de.tsrimlne whether e charter reoltatlon as to the
plaoe buslnese is to be transaoted 18 c~n~l~slve over the aotual
*itUs or. the prinolpal plaoe of bualnese.
In thie respeot and ae sa& pertains to thequestion
Of venue of suits against Oorporatione, the follrmlng &a been
said z
In the ease or B rd Cattla Co. v. Texas Vegetable
Union. (Civ. Am.). 28 8. w. 1 2d) 990, It was held th t where
the oi&ter itiiii-rixe5 two plebe8 wtien its prinoipal 0rri068
are located, and, although only one of euch places :l~ actually
;ct, both are avollable for venue of a suit against said oorpora-
.
In the ease of Hawk k Buok Co. v. Cassldy, (Civ.
App.), 264 S. W. (26) 1145, wherein tbr controlling question wee
whether the reoltatlona in the oharter OS the oorporatlon designa-
ting Dallas County ae its plaoe of buslnees wee euffiole&, to re-
tain the venue tnere even though the oorporetlon wai not, in reality,
USing suoh oounty aa a place of residence, the Oourt held ae fol-
lowr :
*Article 1304, V.A.C.S., rsqulree that the
charter or any private oorporatlon muet set forth
the *pl.aoe Or places where Its buelness 1s to br
transaoted.’ Suoh statutea aie, no doubt, for the
obvloua purpose of avoldidg disputes aa to the oom-
Pany’s *place of business’ or *domIol~e* and .to de-
termine ‘venue, fix a situs ‘for the purpose of gsnerel
~urlsdlotlon and taxation,’ and to apprlos the stook-
holders where they may go to inepeot t~he books and
reOoIde or their oompeng. Flteoher Cyo. Corp., Psrm.
iid lC deo. 4046. The domicile of ths defendant oor-
poratlon in thle oase wtis thus fixed in Del.laa
County for the purpose of venue*u:tfl ohanged in
some manner..authorised by law. In this
deoislon, however; we do not wish to be understood
au holding that’the provisions of the oharter fix
the venue exolusivsly in Dallas County. The prln-
olpel oi’fios of the oorporatlon is admittedly in
Tarrant County and thus venue against it might also
be there under aubdlvlaion 93 of Article 1995. V.
A. c. s. The~aonolusivenesa of the reoltatlonr In
the oharter must neoeasarilg be oonetrued against
the oorporetlon und not lo its iavor so as to permit
It to remove a nuit from ths County of its aotual
resldenoe to one designated in its oharter.” (Under-
oooring ours)
The effeat of the ruling, as announced in the two
oases next above mentioned, on our question would~ seem to be
that suoh ohartar recitation is e declaration against the ln-
terest of the corporation and es suoh must be atrl,o9~y construed,
against the oorporotlon and not in Its revor.
Those cases, rpeolfically on the venue question,
refused to allow the oorporetlona to &y “hide end go seek”
with plaintiffs end take advantage or them aerely beoauee of
a tallaoloue etatement previously made by the ,oorporatlons la
their charter es to the plaoae where their buslnsss is .to be
tranaaoted. This prlnolple, if applied to the question now
before us, would eeem to rorbid the owner oorporatloa to ohoose
arbitrarily lta registration sltus through a mere reoitatlon in
its ohiirter when in truth and f’aot it doe8 not have even an ot-
fiae In euoh oounty so ohoeen. To hold the contrary would be
aoastrulng the ohuter reolta.tion as oonolusive in favor of the
corporation and allow ah obvloue subterfuge et the will of the
oorporat Ion.
i
1~
a situation eimilar in some respect8 to the one
:\ ln question was deoided by the Dallas Court of Civil Appeala
P on the theory that the situs of the ho:- oflloe in regard to
tax matters was a question of faot, and the realtetlone in the
by-laws were not oonoluslve, and held aa follows:
“The undisputed evidence ehows that defendant
maintains the oharlaCer of offloe in Dallas that is
324
honordble D. C. Greer, Page S
Unually terrmsd a *home office’ end does not aain-
teln auoh en offloe in the elty of Austin, thougO
lta by-law8 deeigmte the olty of Xustln es its
hODK8 0ffiCe. In the former city la the 0rri00 0r
the ixeoutlve heede of the easoclation, ngd in the t
olty is tranaeoted all such business of thi, aaaoole-
tlon as 18 uaually tranaaoted at a home oftioe. In
view of this raot, the trial oourt found as a feat
thst tha home office was in the oity of Dallas, and
we are’of the opinion that woh finding is warranted
by tha uudlaputed fada in this oaae.* Texas &n-
ployera* SM. Asa’n. v. City of Dallea, S 9. 1y. (2d)
614 (oiV. APR.) (writ ibf.)r
As a by-law la merely a rule of aotion in aooord-
enoe with whloh the affairs of the corporation are to be conduoted,
and aubjeot to the ohsrtsr and statutory provlal0na, both, the
oharter,reoitation aa to where its bualnesa la to be transeoted,
end the by-law passed la aooordsnae with said ohsrter reoltetlon,
atend on the same plane es to their oonolusivenesa;
The fuota iis set out in ybur letter olearly show
that the oorporetlon in question *maUt$na no office of any kind
either in Town A or eleewhero in I County.*
Let It be deflnltely ,understood that wa are not
ruling here on where tha raafdenoe for registration purposes
would ba if the oorporatlon had an office in the county v&t at
the plaos deai6nated ln the ohsrter in addition to an offlaa in
another county.
Considering the above, we hold that tin legal re-
sidence of the oorporatlon in question for thb purpose of regla-
tratlon or its motor vehlolea, on the baala of tba faota as set
out in your letter, ie in B County and l$ot in X County.
,Truetlng thla answers your question, we are
Yours very truly