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by statements in the articles. The language of the statute need not be employed, a literal compliance in such cases never being required. (Mokelumne Hill etc. Co. v. Woodbury, 14 Cal. 424, 73 Am. Dec. 658; Ex parte S. V. W. W., 17 Cal, 136; 8. V. W. W.

San Francisco, 22 Cal. 440; Thompson v. People, 23 Wend, 537; People 1. Stockton & V. R. R. Co., 45 Cal. 313, 13 Am. Rep. 178. To same effect: People v. Montecito Water Co., 97 Cal. 278, 33 Am. St. Rep. 173, 174, 32 Pac. 236. Note citation: 33 Am. St. Rep. 178. See notes to sections 293, 294.)

TO FILE ARTICLES WITH COUNTY CLERK AND SECRETARY

OF STATE, AND RECEIVE CERTIFICATE-TERM OF EXISTENCE. Sec. 296, C. C. Upon filing 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, and the affidavit mentioned in the last section where such affidavit is required, the Secretary of State 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 person signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the certificate, and for the term of fifty years, unless it is, in the articles of incorporation, otherwise stated, or in this code otherwise specially provided; provided, however, that the Secretary of State shall not file any copy of the copy of any articles, or issue any certificate of incorporation to any corporation, which articles set forth the corporate name of any corporation heretofore organized in this state, or file any copy of any articles, or issue any certificate of incorporation to any corporation existing at the time of filing said articles, which articles set forth a name so closely resembling the name of such corporation as will tend to deceive. En. March 21, 1872. Amd. 1873-74, 199; 1901, 629.

Filing copy of copy of articles in different counties: Sec. 299, C. C.

Legislative History.

The original section was as follows: “Sec. 296. Upon the filing of the articles of incorporation, in the office of the county clerk of the county in which the business of the company is to be transacted, and a copy thereof with the Secretary of State, the Secretary of State must issue to the corporation, over the great seal of the state, a certificate that such articles, containing the required statement of facts, have been filed in his office; and thereafter the persons signing the same, and their associates and assigns, are a body politic and corporate, by the name stated in the certificate, and for the term of fifty years, unless it is in the articles of incorporation otherwise stated, or in this part otherwise specially provided.”

The amendment of 1873-74 made the section read as now down to the proviso; the proviso was added by the amendment of 1901.

As the law stood prior to the adoption of the Civil Code, corporations had a legal existence from the date of filing the certificate of incorporation in the county clerk's office. (Mokelumne Hill Mining Co. v. Woodbury, 14 Cal. 424, 73 Am. Dec. 658.)

Section Cited.

Fresno Canal etc. Co. v. Warner, 72 Cal. 382, 14 Pac. 37; Wickershanr v. Brittan, 93 Cal. 39, 28 Pac. 792, 29 Pac. 51; Martin v. Deetz, 102 Cal. 63, 41 Am. St. Rep. 151, 36 Pac. 368; Calif. S. & L. Society v. Harris, 111 Cal. 135, 43 Pac. 525; People v. G. G. Lodge No. 6, 128 Cal. 267, 60 Pac. 865; Wall v. Mines, 130 Cal. 38, 62 Pac. 386.

Annotation.

Filing of Articles.- A failure to file articles of incorporation in the clerk's office of the county where the principal place of business is prevents a corporation from being a corporation de jure. (Martin v. Deetz, 102 Cal. 55, 41 Am. St. Rep. 151, 36 Pac. 368.)

But where articles of incorporation were delivered to a county clerk, who was ex-officio recorder, and who erroneously marked them as filed in the recorder's office, and, upon the filing of a duplicate thereof, with the Secretary of State, a certificate of incorporation was issued by him, the law was substantially complied with, and the legality of its organization cannot be collaterally attacked. (San Diego Gas Co. v. Frame, 137 Cal. 441, 70 Pac. 295.),

The articles of incorporation must be filed with the county clerk, and a certified copy thereof with the Secretary of State, before a corporation can in fact become a body politic and corporate. After this is done, the corporation comes into existence. (People v. G. G. Lodge, 128 Cal. 262, 60 Pac. 865.)

Issuance of Certificate. The Secretary of State has no authority to issue a certificate of incorporation without first receiving a copy of the articles of incorporation, certified by the county clerk, showirg that the steps prerequisite to the assumption of corporate powers have been complied with. The certificate is requisite to give the in. corporation a de jure existence. A second certificate merely reciting that articles of incorporation were filed in office of Secretary of State, on a certain date, on which a certificate of incorporation thereof was issued by him, is not admissible proof of the first cer tificate, and fails to prove a compliance with the law. (Wall v. Mines, 130 Cal. 27, 62 Pac. 386.)

Corporate Existence Begins When.- Prior to the code, it was held the filing of duplicate articles in the office of the Secretary of State is not necessary to establish corporate existence as against parties other than the state, and such failure can be objected to only by the state. A corporation exists from the date of filing their articles in county clerk's office. (Mok. etc. Co. v. Woodbury, 14 Cal. 424, 73 Am. Dec. 658. To same effect: Humphreys v. Mooney, 5 Colo. 295; Granby Min. Co. v. Richards, 95 Mo. 111, 8 S. W. 246; Hyde v. Doe, 4 Saw. 135, Fed. Cas. No. 6969; Cross v. Pinckneyville Man. Co., 17 Ill. 54; S. V. W. W. v. San Francisco, 22 Cal. 440-441, Note citation: 79 Am. Dec. 437.)

This holding was announced under section 123 of the act of 1850 (Stats. 1850, p. 366), which declared the persons executing the articles a body corporate "when the certificate shall be filed." The language of the code contemplates the filing of both the original articles and the duplicate, “and thereupon the persons signing the articles .... shall be a body politic and corporate,” etc. How far this change in the statute would change the rule announced in the Woodbury case has not been determined. [See, however, People v. G. G. Lodge, 128 Cal. 262, 60 Pac. 865; Wall v. Mines, 130 Cal. 38, 62 Pac. 386.-Eds.)

“The persons signing the articles, and their associates and successors” are by the statute declared to be a “body politic and corporate." These persons and not the directors constitute the corporation. (Wickersham v. Brittan, 93 Cal. 39, 28 Pac. 792, 29 Pac. 51.)

The Corporate Name.- Where an individual would not be allowed to use the trade name under the same circumstances, a corporation may not take it as a part of its corporate name, and thus by indirection accomplish ends otherwise forbidden by law. (Hain que v. Cyclops Iron Works, 136 Cal. 351, 68 Pac. 1014.)

But persons entitled to use a trade name may incorporate and embody the trade name in the name of the corporation, and such corporation may sue to enjoin an infringement of the trade name. The use of the trade name for two years prior to the incorporation in the same firm is no fraud on the public. (Nolan Bros. Shoe Co. v. Nolan, 131 Cal. 271, 82 Am. St. Rep. 346, 63 Pac. 480.)

COPY OF ARTICLES PRIMA FACIE EVIDENCE.

Sec. 297, C. C. A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the Secretary of State, or by the county clerk of the county where the original articles shall have been filed, must be received in all the courts of this state, and other places, as prima facie evidence of the facts therein stated. En. March 21, 1872. Amd. 1873-74, 200; 1895, 30.

Legislative History.

The original section had the word "primary" instead of "prima facie.” The words “or by the county clerk of the county where the original articles shall have been filed” were added by the amendment of 1895.

Similar provisions are found in section 158 of the incorporation act of 1850 (Stats. 1850, p. 370); in section 3 of the incorporation act of 1853 (Stats. 1853, p. 87); in section 11 of the homestead act of 1861 (Stats. 1861, p. 571); and in section 3 of the savings and loan corporation act of 1862 (Stats. 1862, p. 199).

Section Cited.

Boston Tunnel Co. v. McKenzie, 67 Cal. 488, 8 Pac. 22; Fresne Canal etc. Co. v. Warner, 72 Cal. 382, 14 Pac. 37.

Articles as Evidence.-It was held prior to the code that the existence of a corporation is proved by its articles of incorporation. (S. V. W. W. v. S. F., 22 Cal. 434. Note citations: 19 Am. Dec. 67; 73 Am. Dec 661.)

In an action involving the issue of corporate existence, a copy of the certified copies of the articles of incorporation on file in the office of the Secretary of State is admissible in evidence in proof of such existence. (Fresno Canal etc. Co. v. Warner, 72 Cal. 379, 14 Pac. 37.)

And such certified copy of the certified copy of the articles on file in the office of the Secretary of State, is admissible in such action in the county where the original articles were filed. A certified copy of the original articles is not required. (Boston Tunnel Co. v. McKenzie, 67 Cal. 485, 8 Pac. 22.)

Such certified copy, however, to be admissible, must be a certified copy of the original articles as filed with the county clerk, or of the certified copy filed with the Secretary of State. A second certificate merely reciting that articles of incorporation were filed on a certain date, on which a certificate of incorporation was issued, is not admissible as proof of the first certificate, and fails to prove a compliance with the law. (Wall v. Mines, 130 Cal. 27, 62 Pac. 386.)

Corporation Laws-8

So, also, a document, purporting to be a certificate of incorporation, which is legally defective for want of conformity to the statutory requirements, is not proof of a corporation in esse. (McCallion v. Hibernia S. & L. Soc., 70 Cal. 163, 12 Pac. 114. Note citation: People v. Water Co., 33 Am. St. Rep. 177.)

Nevertheless, certified copies of articles are admissible to prove the existence of a corporation de facto, where there are no substantial defects in their compliance with statutory requirements. (Mining Co. v.' Allmrent, 26 Cal. 286.)

Proof of Consolidation.— Certified copies from office of Secretary of State of articles consolidating two or more railroads are admissible in evidence to prove such consolidation. (Vance v. Kohlberg, 50 Cal. 346.)

WHO ARE MEMBERS AND WHO STOCKHOLDERS OF A COR

PORATION Sec. 298, C. C. The owners of shares in a corporation which has a capital stock are called stockholders. If a corporation lias no capital stock, the corporators and their successors are called members. En. March 21, 1872.

Section Cited.

Market St. Ry. Co. v. Hellman, 109 Cal. 588, 42 Pac. 225; Smith v. E. F. & N. P. Ry. Co., 115 Cal. 593, 56 Am. St. Rep. 119, 47 Pac. 582.

Annotation.

Stockholders. This section does not need or admit of the construction that only those are stockholders who are owners of stock. It does not purport to be a definition of the term “stockholder," or to limit its extent, as would have been the case if it had said that stockholders are those who own shares of stock in a corporation; but others may be stockholders than merely those who are the owners of the stock. For the purpose of avoiding such a construction section 312 of the same code requires the voter at an election to be a bona fide stockholder. (Smith v. S. F. & N. P. Ry., 115 Cal. 593, 56 Am. St. Rep. 119, 47 Pac. 582.)

FILING ARTICLES OF INCORPORATION.

Sec. 299, C. C. No corporation hereafter formed shall purchase, locate, or hold property in any county in this state, without filing a copy of the copy of its articles of incorporation filed in the office of the Secretary of State, duly certified by such

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