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To make by-laws, not inconsistent with existing law, for the management of its property, the regulation of its affairs and for the transfer of its stock.
"Seventh. To increase or diminish by a vote of its stockholders, cast as its by-laws may direct, the number of its directors or trustees to not less than three, nor more than twenty-one, and may in like manner change its corporate name without in anywise affecting its rights, privileges or liabilities; such changes of name or number of directors or trustees shall take effect and be in force from the date at which the president or secretary of such corporation shall file with the secretary of state an affidavit duly recorded in the office of the recorder of deeds of the county in which the corporation is located, setting forth the name adopted or the number of directors or trustees fixed, together with the date at which such change in name or number of directors or trustees was voted by the stockholders of such corporation. Any corporation may, at a meeting duly called and held, notice of such meeting first having been given in manner and form as is provided in sections 9740 and 9741, Revised Statutes, 1919, for increase of capital, increase or decrease the par value of its shares of stock and, respectively, correspondingly, reduce or increase the number thereof by a vote of a majority of the stock of the corporation: Provided, that no corporation shall engage in business other than that expressly authorized in its charter, or the law under which it may have been or may hereafter be organized." (R. S. 1909, § 2990.) Amended Laws, 1913, p. 165:
General application.-Only such powers and rights can be exercised under corporation franchises as are clearly comprehended within the words of the grant or derived therefrom by necessary implication, regard being had to the object of the grant. Watson Seminary v. Pike Co., 149 Mo. 57, 50 S. W. 880; State ex rel. v. Murphy, 130 Mo. 10, 31 S. W. 594; State ex rel. v. Orear, 144 Mo. 157, 45 S. W. 1081; Prairie Slough, etc. Club v. Kessler, 252 Mo. 424, 159 S. W. 1080. A stockholder of a corporation created in 1864 had, after the adoption of the Constitution of 1875, the right to cumulate his vote for directors, whether the charter gave or withheld such right. Gregg v. Mining Co., 164 Mo. 616, 65 S. W. 312. A charter granted by the legislature exempting property from taxation for a specified number of years constitutes a contract which cannot subsequently be impaired. Scotland Co. v. Ry., 65 Mo. 123. Private charters are contracts. Watson Seminary
v. Pike Co., 149 Mo. 57, 50 S. W. 880.
An ultra vires contract of a corporation is void, and is not the subject of ratification. Ellett etc. Co. v. Stores Co., 132 A. 513, 112 S. W. 4.
Duration. The twenty-year limitation applies only in event the fundamental articles of a particular corporation do not otherwise provide. And where it appears from the articles that they intend to establish a perpetual institution of learning, it is the duty of the court to effectuate that intention. State ex rel. v. Lesueur, 141 Mo. 29, 41 S. W. 904.
The term "perpetual succession," when used in a corporation's charter, qualifies the succession and not the duration of corporate existence, and implies nothing more than a continuous succession during the existence of the corporation as fixed by its charter. State ex rel. v. Payne, 129 Mo. 468, 31 S. W. 797; State ex rel. v. Road Co., 138 Mo. 332, 39 S. W. 910; State ex rel. v. Road Co., 207 Mo. 54, 105 S. W. 752. The twenty-year limitation does not apply to a corporation purely
State ex rel. v. Ladies of Sacred Heart, 99 Mo. 533, 12 S. W. 293. to an educational institution. State ex rel. v. Board of Trustees, 175 Mo. 52, 74 S. W. 990. A corporation whose charter has expired is thereafter incapable of making a conveyance of its franchise and property. State ex rel. v. Road Co., 207 Mo. 54, 105 S. W. 752; Bradley v. Reppell, 133 Mo. 545, 32 S. W. 645.
Power to sue and be sued.-An unincorporated local trade union with benevolent association features can sue in its own name. Wiehtuechter v. Miller, 208 S. W. 39. A corporation has the right to sue for damages caused by libel or slander against it. St. James Academy v. Gaiser, 125 Mo. 517, 28 S. W. 851. A corporation whose existence has culminated by the expiration of its charter life cannot be sued. Meramec Spring etc. Co., v. Gibson, 268 Mo. 394, 188 S. W. 179.
Seal -The power of every corporation to make and use a common seal is permissive but not mandatory, and if it has no seal none is required to be affixed to an instrument. Pullis v. Pullis, 157 Mo. 565, 57 S. W. 1095.
See Sec. 2177.
Holding and conveying property.-Where a conveyance is made to the trustees, without naming them, or any of them, title vests in the corporation named in the deed. Keith etc. Co. v. Bingham, 97 Mo. 196, 10 S. W. 32.
Art. 2, Sec. 8, Const., forbids religious corporations, except to hold real estate for church edifices, parsonages and cemeteries. Klix v. Parish, 137 A. 347, 118 S. W. 1171; Society etc. v. Law, 267 Mo. 667, 187 S. W. 1165.
A municipal corporation, under its general statutory power, may own real estate outside its city limits, when not prohibited by its charter, if it needs it for the purpose of carrying out one of its proper corporate functions and duties. Hafner v. St. Louis, 161 Mo. 34, 61 S. W. 632.
The right of way of a railroad company in a public street is an incorporeal hereditament, which may be mortgaged by the company. Hovelman v. Railroad, 79 Mo. 632. Church corporations have power to mortgage their real estate. Keith etc. Co. v. Bingham, 97 Mo. 196, 10 S. W. 32.
The fact that the articles of agreement enumerated powers other than those authorized, could not give the corporation power to acquire land for such additional purposes. Prairie Slough etc. v. Kessler, 252 Mo. 424, 159 S. W. 1080.
Section 3001, R. S. 1909, repealed by act of 1919, relating to manner of conveying land, was substantially the same as Sec. 2790, R. S. 1909, new section 2177.
Appointing agents and making by-laws.-Where one owns practically all the stock of a corporation, a contract signed in his own name, concerning the corporation, may bind it where the facts indicate that intention and understanding of both parties. Jones v. Williams, 139 Mo. 1, 39 S. W. 486. A corporation may employ an agent to perform services consonant with its gen design without any specific authority for that purpose conferred by its charter. Kitchen v. Ry. Co., 59 Mo.
No formal resolution of the board of directors is a prerequisite to the employment of counsel for a corporation. President etc. Co. v. Coquard, 40 A. 40. A savings bank may pass a by-law requiring cashier to give bond. Savings Bank v. Hunt, 72 Mo. 597. By-laws of a corporation must be adopted by the members of the corporate body and cannot be adopted by the directors unless the charter or fundamental law so provides. Klix v. Polish etc. Parish, 137 A. 347, 118 S. W.
A by-law of a business corporation attempting to impose restrictions upon the transfer of stock is invalid. Kretzer v. Cole, 193 A. 99, 181 S. W. 1066.
NOTE-In order to extend the corporate existence, action must be taken during the life of the corporation.
To sue and be sued.—A corporation is equally responsible as an individual for wrongs committed by it. 74 Mo. 495. It is civilly responsible for an act of trespass or tort. 36 Mo. 546; 62 Mo. 119. For injury resulting from the negligence of duty. 55 Mo. 33; 55 Mo. 476. May be used for malicious prosecution. 17 Mo. 213; 75 Mo. 319. Liable for acts of officers and agents acting within the scope of authority. 29 A. 31. A corporation created by one state may sue in another. 1 Mo. 184; 176 Mo. 200. A foreign corporation may be sued by attachment. 9 Mo. 421; 29 Mo. 75.
Holding and conveying property.-Where a conveyance is made to the trustees, without naming them, or any of them, title vests in the corporation named in the deed. 97 Mo. 196.
May purchase and convey such real and personal property as the purposes of the corporation may require. 32 Mo. 305. It will be presumed that a corporation, accepting a conveyance of land, accepted it for a proper and legitimate purpose. 117 Mo. 261. The capacity to take and convey property differs in no essential particular from that of natural persons. 102 Mo. 472. A transfer of land by a de facto corporation is valid as against all persons, except the State. 113 Mo. 633. It may sell its property to a stockholder in payment of a debt, and a conveyance is valid. 168 Mo. 272.
Appointing agents and making by-laws.- -Where one owns practically all the stock of a corporation, a contract signed in his own name, concerning the corporation, may bind it where the facts indicate that intention and understanding of both parties. 139 Mo. 1. A savings bank may pass a by-law requiring cashier to give bond. 72 Mo. 597. A corporation may change its name without affecting its rights or liabilities. 98 A. 227, 234.
A corporation can only act through its agents, and whatever the agent does within the scope of his authority is the act of the corporation. 55 Mo. 201; 3 A. 589. And will bind the corporation without proof of express power to do the act. 29 Mo. 68; 33 Mo. 354; 59 Mo. 514; 81 Mo. 137. Agent's authority may be implied from the manner in which he has been permitted to transact the business. 104 Mo. 531. A corporation cannot express its will except through its agents and officers. 63 A. 85. Officers of a corporation may advance money to, or indorse for it. and the transaction will bind the corporation. 131 Mo. 280. Agents' authority need not be authenticated by the corporate seal. 52 Mo. 480; 75 Mo. 178; 66 Mo. 468. Directors of, a corporation are trustees for the stockholders. 119 Mo. 9; 129 Mo. 106. May employ counsellor. 45 Mo. 419; 61 Mo. 89. Directors of a corporation are presumed to serve gratuitously. 107 Mo. 451; 44 A. 59. Directors cannot vote themselves a salary. 39 A. 460.
The power to make by-laws rests in the corporation itself, and must be exercised by the stockholders. The board of directors has no such power. 8 A. 249; 118 Mo. 447; 56 A. 145. The power to make by-laws may be conferred upon the board of directors by the charter or fundamental law. 25 A. 642; 39 A. 583. The by-laws of a corporation, when properly adopted, are as binding upon the members as a charter provision. 119 Mo. 9; 101 A. 91. A by-law which is unreasonable is void. 2 A. 96; 101 A. 91. A by-law which takes away a common law right, or is contrary to statutory enactment, is void. 2 A. 96; 118 Mo. 447; 78 Mo. 609; 9 A 290. By-laws may be amended so as to change the rights of stockholders as they existed before the amendment. 34 Mo. 423.
A corporation is authorized but not required to have a seal. 157 Mo. 565. 77 Mo. 180; 55 Mo. 218. Where a seal is affixed and the signatures of proper officers are proved, it will be presumed that the officers did not exceed their authority, and the seal itself is prima facie evidence that it was affixed by proper authority. 42 Mo. 74. A chattel mortgage executed by a corporation need not be sealed. 123 A 547. See also, Sec. 2177.
A common seal of a corporation affixed to a deed must be proved to have been adopted by the corporate authority. 1 Mo. 664. A deed to the trustees of a corporation, without naming them, passes the title to the corporation. 97 Mo. 196. A deed to a pretended corporation is a nullity. 107 Mo. 616. But where grantor has received and retained purchase price, he will be stopped from questioning the power to receive the grant. 145 Mo. 622. An instrument executed by the president, without being attested by the seal, is presumed to have been executed without authority. 88 A. 62. A sale of all the property of a corporation will not be held void because some stockholders did not consent, even though such sale amounts to a practical dissolution. 180 Mo. 1. If a corporation has no seal, none is required to be affixed to a deed conveying real estate. 157 Mo. 583. A deed signed by the vice-president is prima facie valid when attested by the corporate seal. 145 Mo. 418.
Majority of board shall constitute quorum, when powers. When the corporate powers of any corporation are directed by its charter, or the provisions of this law, to be exercised by any particular body or number of persons, a majority of such body of persons, if it be not otherwise provided in the charter or law creating it, shall be a sufficient number to form a board for the transaction of business, and every decision of a majority of the persons duly assembled as a board shall be valid as a corporate act: Provided, that not less than three members of such board shall be citizens and residents of the state, and all meetings of boards of directors of such corporations, other than mining corporations and railroad corporations, shall be held at the general office of the company within the state. (R. S. 1909, § 2992.)
An assignment for the benefit of creditors must be made by resolution of board of directors when a majority of the board are present. Calumet Paper Co. v. Ptg. Co., 144 Mo. 331, 45 S. W. 1115.
It is sufficient if all the meetings of the stockholders and directors were held on the Missouri side of the building through which the state line ran, though the company had no office in Missouri, and its business was on the Kansas side. Boatmen's Bank v. Gillespie, 209 Mo. 217, 108 S. W. 74. And see Missouri Lead Co. v. Reinhard, 114 Mo. 218, 21 S. W. 488.
Directors can neither represent nor bind a corporation, unless duly assembled and acting as a board. 119 Mo. 9; 54 A. 202. The action of the individual members will not bind the corporation. 54 A. 202; 26 Mo. 102; 48 Mo. 408. A majority constitutes a quorum and a majority of the quorum may transact the business. 39 A. 453; 92 Mo. 79. Acts of less than a majority of the board is invalid. 68 A. 546. The directors of a corporation are its business managers. 44 A. 172. Directors may delegate to others the power to transact business requiring the highest degree of skill and judgment. 139 Mo. 1. Officers rendering service under an implied agreement may receive reasonable compensation. 166 Mo. 28. May employ counsel without formal resolution of board. 45 Mo. 419; 61 Mo. 89; 77 A. 434. Parol authority may be given for drawing bills of exchange. 51 Mo. 43. The rule that the majority in interest is entitled to the control, within the bounds of good faith, is universally acknowledged and is implied in every contract when the contrary is not expressed. 180 Mo. 1.
NOTE-It is highly important that full and accurate minutes should be kept of all the proceedings had at a meeting of the board of directors.
Sec. 9755. Dissolution of corporation who shall be trustees powers and duties of. Upon the dissolution of any corporation already created, or which may hereafter be created by the laws of this state, the president and directors or managers of the affairs of said corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of such corporation, with full powers to settle the affairs, collect the outstanding debts and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them; to sue for and recover such debts and property by the name of the trustees of such corporation, describing it by its corporate name, and may be sued by the same; and such trustees shall be jointly and severally respon
sible to the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands. (R. S. 1909, § 2995.)
Insolvency and dissolution.-A corporation is a going concern, in contemplation of law, so long as its property remains in its possession, unaffected by liens or process of law. Alberger v. Bank, 123 Mo. 313, 27 S. W. 657. Mere insolvency of a company does not ipso facto work its dissolution. Ready v. Smith, 170 Mo. 163, 70 S. W. 484. Nor does cessation of active business imply a dissolution, so as to deprive the corporation of its right to bring an action. Youree v. Ins. Co., 180 Mo. 153, 79 S. W. 175. Nor does a failure to elect officers dissolve the corporation. Youree v. Ins. Co., 180 Mo. 153, 79 S. W. 175. See also, Barrett v. Stoddard County, 183 S. W. 644. Nor will a sale of its property per se accomplish its Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Hill v. Fogg, 41 Mo.563.
If a corporation suffers acts to be done which have the effect to destroy the object for which it was created, it is equivalent to a surrender of its rights. Moore v. Whitcomb, 48 Mo. 543; Ford v. Ry., 52 A. 439. This section does not apply to a solvent bank whose charter has expired by limitation and whose assets have passed into the hands of its directors as trustees, and been by them assigned to a new bank re-chartered under the same name. Clifford Banking Co. v. Com. Co., 195 Mo. 262, 94 S. W. 527.
Upon the dissolution of a corporation its real estate does not revert to its grantor but vests in the president and directors or managers of its affairs as trustees for the benefit of creditors and stockholders. Richards vs. Coal and Mining Co., 221 Mo. 149, 119 S. W. 953.
Whenever the charter expires by reason of the time mentioned in the articles of incorporation having expired, the affairs of the company must be wound up as provided in this section. Scott v. Davis, 198 A. 512, 200 S. W. 723.
Effect of dissolution.-Debts due a corporation do not become extinct upon its dissolution. The officers as trustees have the power to collect them. McCoy v. Farmer, 65 Mo. 244; Kansas City Hotel Co. v. Sauer, 65 Mo. 279. Limitation runs from dissolution of corporation in favor of secretary against a right of action for not paying over money collected before the dissolution. Landis v. Saxton, 105 Mo. 486, 16 S. W. 912. The officers and managers are not liable to creditors of the corporation unless assets of the corporation have come into their hands. Isler v. Scudder, 12 A. 581. Act of trustees of dissolved bank in erroneously paying to stockholders money which should have gone to creditors does not of itself give trustees a right of action against the stockholders for reimbursement. Daugherty v. Poundstone, 120 A. 300, 96 S. W. 728. Trustees of a dissolved corporation are not liable personally nor as trustees on a covenant of seizin in an assignment of a lease. The purchaser buys at his peril. Shannon v. Mastin, 135 A. 50, 114 S. W. 1127.
A dissolution will be presumed when it ceased to do business and has disposed of its property. .9 A. 114; 43 A. 482. But such acts would not per se accomplish a dissolution. 41 Mo. 563; 65 Mo. 279; 11 A. 594. Where a corporation entirely abandons the end and object for which it was created, it amounts to a dissolution. 48 Mo. 534; 50 A. 648; 43 A. 482. Likewise, hopeless insolvency. 26 Fed. 572. Dissolution will not be presumed from non-user. 9 A 114. The mere adoption of a resolution to discontinue business does not have that effect. 74 Mo. 286. A corporation is dissolved by an expiration of its charter by limitation. 84 Mo. 208; 133 Mo. 545. The question of expiration can only be adjudicated by the state in a direct proceeding. 11 A. 55; 84 Mo. 202; 133 Mo. 545; 39 Mo. 119. The consolidation of two or more companies into one is a dissolution of all of them. 106 Mo. 594.
NOTE-The bank commissioner holds that a corporation may, by unanimous vote of all its stockholders, when evidenced by the affidavit of the president or secretary, and filed in the office of the bank commissioner, become a de facto dissolved corporation for the purpose of the records of that office.
Sec. 9756. Voluntary dissolution of corporations, when permitted-judgment of dissolution, when entered.-Whenever the