tion bestows upon State officials the duty of examining articles of incorporation and passing upon their legal sufficiency and authorizes State officials to certify that the incorporators have become a corporation, then the issue of such certificate becomes an adjudication that the corporation has been duly formed until the State has vacated the charter by proper proceedings taken in the courts. Usually this duty is bestowed upon the State department which is a branch of the executive, and cannot therefore pass upon questions which are purely judicial.2 It is confined to an examination as to whether the purposes of the proposed corporation are legal on their face and whether conditions precedent have been complied with so that a charter should properly issue.3 The main points to which State officials should address themselves in passing upon corporation papers presented to them are as follows: (1) Have the requisite number of incorporators signed the articles of incorporation? (2) Have the articles been properly acknowledged by the incorporators? (3) Is the corporate name mentioned in the articles one that can be lawfully used by the proposed corporation? (4) Have the statutory requirements relative to the contents of the articles of incorporation been substantially complied with? 4 Generally speaking, permission to file charters may be refused upon the following grounds: If the name of the proposed corporation is identical or closely resembles that of an existing corporation, the State officials may exercise their discretion and refuse to pass the charter.5 It has been held, however, by a court of excellent authority that a statute prohibiting the corporation from assuming a name in use by any other organization or so closely analogous to it as to mislead the public is designed to protect domestic corporations. 1 Boyce v. M. E. Church, 46 Md. 359; D. H. R. R. Co. v. Marsh, Fed. Cas. 4014. 2 Granby Co. v. Richards, 95 Mo. 106; 8 S. W. 246; Van Pelt v. Gardner, 54 Neb. 701; 75 N. W. 874. 8 P. R. T. Rd. Co. Charter Application, 20 Pa. County Ct. Rep. 151; N. M. G. T. Co. v. N. G. T. Co., 21 Pa. County Ct. Rep. 393; People v. Company, 130 Ill. 268; 22 N. E. 798. 4 State v. National Inv. Co., 88 Wis. 512; In re Application for Charter, 5 Pa. Dis. Rep. 243; In re Application for Charter St. L. Ass'n, 19 Pa. County 5 State v. McGrath, 92 Mo. 355; 5 S. W. 29; American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. St. 189; 47 Atl. 936; People v. Payne, 161 N. Y. 229; 55 N. E. 849. People v. H. L. A. Co., 111 Mich. 405; 69 N. W. 653. Generally speaking, the action of the Secretary of State in issuing a license or certificate of incorporation is ministerial.1 Neither State officials nor the courts can with respect to incorporation add new conditions to those prescribed by statute.2 Generally, the test of the extent of powers of ministerial offices. is the right to compel performance by mandamus.3 It is an almost universal rule that after the certificate is once issued, the officer who issues it has no power to revoke the certificate. For this purpose application must ordinarily be made to the courts.1 § 77. Right to Mandamus State Officials for refusing to file Articles. Ordinarily mandamus is the proper remedy where State officials refuse to file a certificate of incorporation, provided the duty of receiving and filing the same is lodged with them. 5 § 78. Organization Tax. By the term "organization tax," as here used, is to be understood the amount of money exacted by the State from individuals in return for a grant from the former to the latter of the right or privilege of being a corporation; that is, of doing business in a corporate capacity and under the privilege or franchise which when incorporated the company may exercise. The right or privilege to be a corporation or to do business as such body is one generally deemed of value to the corporation, which is the right or privilege by which several individuals may unite themselves under a common name and act as a single person with a succession of members without dissolution or suspension of business and with a limited individual liability. The grant of such a right or privilege rests entirely in the discretion of the State, and may unquestionably be accompanied with such conditions as the legislature thereof may judge most befitting to its interests and policy. Thus the latter may require of the incorporators, as a condition to the original grant of the franchise as well as of its continued exercise, that the corporation pay a specific sum to the State." 1 People v. C. G. T. Co., 130 Ill. 269; 22 N. E. 798. 2 Hastings v. A. P. Co., 29 Wash. 224; 69 Pac. 776. 8 F. B. Co. v. Wood, 14 Ga. 80. 4 See, however, I. W. C. Co. v. Pearson, 140 Ill. 423; 31 N. E. 400; In re N. I. E. Co., 142 Pa. St. 450; 21 Atl. 879. 5 People ex rel. N. Y. P. Co. v. Rice, 128 N. Y. 59, 28 N. E. 251; H. W. I. Co. v. N. Y. H. I. Co., 140 N. Y. 94; 35 N. E. 417; State v. Taylor, 55 O. St. 61, 44 N. E. 513; State v. McGrath, 92 Mo. 355; 5 S. W. 29; Illinois Watch Case Co. v. Pearson, 140 Ill. 423; 31 N. E. 400. 6 Home Insurance Co. v. People of the § 73. Affidavit as to Stock Subscriptions. The laws of Florida, Georgia, Illinois, Kansas, Michigan, Missouri, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Utah, Vermont, and West Virginia require in addition to the ordinary acknowledgment of the execution of the articles, that the same be accompanied by an affidavit showing that the amount of stock required by law as a preliminary to doing business as a corporation has been duly subscribed. The same matter appears in the certificate of organization required in Arkansas, Connecticut, Indian Territory, Maine, and Virginia. On the other hand, the incorporation acts of Alabama, California, Delaware, Idaho, Kentucky, Nevada, New Jersey, New York, North Carolina, Ohio, Virginia, and Washington merely require that the amount of stock subscriptions be set forth in the articles. As to the content of the affidavits as to stock subscriptions, it is sufficient if they serve to show clearly that the statute relative to the same has been substantially complied with.2 Unless the statute designates some officer before whom such affidavit be sworn to, it may be made before any officer authorized to administer oaths and to certify to the same.3 § 74. Anti-Trust Affidavit. Some few of the States - such, for example, as South Dakota, Missouri, and Illinois - require either of the incorporators before organization or of certain designated officers of the corporation after organization that they certify and make oath to the effect that the corporation is organized for the transaction of a lawful business and not for the purpose of enabling the corporation to violate the provision of the anti-trust act in force in that particular Commonwealth. Just what practical purpose the requirements here referred to serve, it would be difficult to say. In its practical operation it is usually a mere formality, and has, so far as observation goes, seldom served any useful purpose.* § 75. Special Requirements in Particular States. Owing to the varied requirements existing in the several States and Territories relative to the steps necessary to procure charters under 1 People v. Company, 45 Cal. 306. People v. Company, 45 Cal. 306; B. & P. Ry. Co. v. Hatch, 20 N. Y. 157. 3 Wood v. Bank, 9 Cowen, 194. See Ohio St. Ry. Co. v. State, 49 O. St. 668; 32 N. E. 933; People v. Company, 121 N. Y. 582; 24 N. E. 834; State v. Standard Oil Co., 49 O. St. 137; 30 N. E. 279. the laws thereof, it will be impossible to do more than merely refer to a few of these requirements not already discussed. Under the statutes of some of the States it is necessary before a charter can issue that the capital stock either be subscribed for in whole or in part. In others it is necessary that all or part of the authorized capital stock be actually paid in.2 However, in many of the States it is not necessary that the capital stock be subscribed for as a condition precedent to corporate existence.3 Some of the States require that the certificate shall show the amount of the capital stock, the amount actually paid in, and that it shall give the names and residences of the shareholders, and the amount of stock which each has subscribed. Where such provisions exist substantial compliance therewith is essential to the creation of a de jure corporation.* Sometimes incorporation acts require that the certificate shall state the maximum amount of indebtedness which the corporation is authorized to incur.5 In Indiana the articles must contain an impression or description of the seal. In Georgia charters are issued by the courts upon petition therefor. Here as well as in other cases the statute governing the matter must be substantially complied with." In some States the law requires that the certificate shall set forth the name and location of the principal place of business of the corporation. Such provision must be substantially complied with.8 In Pennsylvania, where the incorporation act required the application for a charter to show the place of business of the proposed corporation, and the application merely stated location of its office, it was held insufficient. This for the reason that a corporation may have its office in one place and its place of business in another.9 § 76. Powers of State Officials Relative to Accepting or Rejecting Articles. Where the statute either expressly or by implica tion bestows upon State officials the duty of examining articles of incorporation and passing upon their legal sufficiency and authorizes State officials to certify that the incorporators have become a corporation, then the issue of such certificate becomes an adjudication that the corporation has been duly formed until the State has vacated the charter by proper proceedings taken in the courts. Usually this duty is bestowed upon the State department which is a branch of the executive, and cannot therefore pass upon questions which are purely judicial.2 It is confined to an examination as to whether the purposes of the proposed corporation are legal on their face and whether conditions precedent have been complied with so that a charter should properly issue.3 The main points to which State officials should address themselves in passing upon corporation papers presented to them are as follows: (1) Have the requisite number of incorporators signed the articles of incorporation? (2) Have the articles. been properly acknowledged by the incorporators? (3) Is the corporate name mentioned in the articles one that can be lawfully used by the proposed corporation? (4) Have the statutory requirements relative to the contents of the articles of incorporation been substantially complied with? 4 Generally speaking, permission to file charters may be refused upon the following grounds: If the name of the proposed corporation is identical or closely resembles that of an existing corporation, the State officials may exercise their discretion and refuse to pass the charter.5 It has been held, however, by a court of excellent authority that a statute prohibiting the corporation from assuming a name in use by any other organization or so closely analogous to it as to mislead the public is designed to protect domestic corporations." 1 Boyce v. M. E. Church, 46 Md. 359; D. H. R. R. Co. v. Marsh, Fed. Cas. 4014. 2 Granby Co. v. Richards, 95 Mo. 106; 8 S. W. 246; Van Pelt v. Gardner, 54 Neb. 701; 75 N. W. 874. P. R. T. Rd. Co. Charter Application, 20 Pa. County Ct. Rep. 151; N. M. G. T. Co. v. N. G. T. Co., 21 Pa. County Ct. Rep. 393; People v. Company, 130 Ill. 268; 22 N. E. 798. 4 State v. National Inv. Co., 88 Wis. 512; In re Application for Charter, 5 Pa. Dis. Rep. 243; In re Application for Charter St. L. Ass'n, 19 Pa. County 5 State v. McGrath, 92 Mo. 355; 5 S. W. 29; American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. St. 189; 47 Atl. 936; People v. Payne, 161 N. Y. 229; 55 N. E. 849. People v. H. L. A. Co., 111 Mich. 405; 69 N. W. 653. |