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certificate of incorporation of any of said companies shall be filed, and a copy thereof shall be filed in the office of the secretary of state. Such certificates shall be signed by a majority of each board of trustees or directors of the original companies ; and it shall be their duty to call, within thirty days after the filing of such certificate, and after at least ten days' public notice, a meeting of the stockholders of all of said companies so consolidated, to elect a board of trustees or directors for the consolidated company, for the year thence next ensuing. The said certificate shall also contain all the requirements prescribed by section two hundred and ninety of said Civil Code.

This act shall apply to all corporations formed under the laws of this state, whether formed under the said Civil Code or prior thereto. En. Stats. 1875-76, 75.

TRANSFER OF FRANCHISE NOT VALID WITHOUT CONSENT

OF STOCKHOLDERS. Sec. 361a, C. C. No sale, lease, assignment, transfer or conveyance of the business, franchise and property, as a whole, of any corporation now existing, or hereafter to be formed in this state, shall be valid without the consent of stockholders thereof, holding of record at least two-thirds of the issued capital stock of such corporation; such consent to be either expressed in writing, executed and acknowledged by such stock: holders, and attached to such sale, lease, assignment, transfer or conveyance, or by vote at a stockholders' meeting of such corporation called for that purpose, but with such assent, so expressed, such sale, lease, assignment, transfer or conveyance shall be valid; provided, however, that nothing herein contained shall be construed to limit the power of the directors of such corporation to make sales, leases, assignments, transfers or conveyances of corporate property other than those hereinabove set forth. En. Stats. 1903, 396.

AMENDMENT OF ARTICLES OR CERTIFICATE OF INCORPO

RATION. Sec. 362, C. C. Any corporation may amend its articles of incorporation by a majority vote of its board of directors or truz.

tees, and by a vote or written assent of the stockholders representing at least two-thirds of the subscribed capital stock of such corporation; and a copy of the said articles of incorporation, as thus amended, duly certified to be correct by the president and secretary of the board of directors or trustees of such corporation, shall be filed in each office where the original articles of incorporation are, or any copy thereof is, required by this code to be filed; and from the time of so filing such copy of the amended articles of incorporation, such corporation shall have the same powers, and it and the stockholders thereof shall thereafter be subject to the same liabilities, as if such amendment had been embraced in the original articles of incorporation; provided, that the time of the existence of such corporation shall not be by such amendment extended beyond the time fixed in the original articles of incorporation; provided further, that such original and amended articles of incorporation shall together contain all the matters and things required by the laws under which the original articles of incorporation were executed and filed ; and, also provided, that if the assent of two-thirds of the said stockholders to such amendment has not been obtained, a notice of the intention to make the amendment shall first be advertised for thirty (30) days in some newspaper published in the town, city, or county, or city and county, in which the principal place of business of the corporation is located before the filing of the proposed amendment; and provided also, that nothing in this section shall be construed to authorize any corporation to diminish its capital stock. En. Stats. 1885, 91. Amd. 1893, 131; 1903, 411.

Legislative History.

The section, as originally enacted, is as follows: "Sec. 362. Any corporation may amend its articles of association or certificate of incorporation by a majority vote of its board of directors or trustees, and by a vote or written assent of the stockholders, representing at least two-thirds of the capital stock of such corporation; and a copy of the said articles of association or certificate of incorporation, as thus amended, duly certified to be correct by the president and secretary of the board of directors or trustees of such incorporation, shall be filed in the office or offices where the original or certificates of incorporation are required by this code to be filed; and from the time of so filing such copy of the amended articles of association or certificate of incorporation, such corporation shall have the same powers, and it and the stockholders thereof shall thereafter be subject to the same liabilities as if such amendment had been embraced in the original articles or certificate of incorporation; provided, that the time of the existence of such corporation shall not be by such amendment extended beyond the time fixed in the original articles or certificate of incorporation; provided further, that such original and amended articles or certificate of incorporation shall together contain all the matters and things required under which the original articles of association or certificate of incorporation were executed and filed; and, provided further, that nothing herein contained shall be construed to cure or amend any defect existing in any original certificate of incorporation heretofore filed, by reason that such certificate does not set forth the matters required to make the same valid as a certificate of incorporation at the time of its filing; and also provided, that if the assent of two-thirds of the stockholders to such amendment has not been obtained, that a potice of the intention to make the amendment shall first be advertised for thirty (30) days in some newspaper published in the town or county, or city and county, in which the principal place of business of the association or corporation is located, before the filing of the proposed amendment; and, provided also, that nothing in this section shall be construed to authorize any corporation to diminish its capital stock.”

The amendment of 1893 inserted the word “subscribed" before the words "capital stock" in the first sentence.

Section Cited.

Bowie v. Grand Lodge S. W., 99 Cal. 396, 34 Pac. 103; McDermont 1. Anaheim etc. Water Co., 124 Cal. 115, 56 Pac. 779.)

Annotation.

Amendment of Articles.-Injunction will issue at the instance of stockholders to restrain a company from supplying water for the irrigation of the lands of new stockholders, made defendants, to whom stock was issued under a void amendment of the articles of incorporation, including additional lands, when such amendment was adopted and filed by the directors, without the consent of twothirds of the subscribed stock, and without notice of intention to amend the articles, and when the supplying of water to the new stockholders will deprive the plaintiffs of a portion of the water which is necessary to irrigate their lands and for their domestic use. (McDermont v. Water Co., 124 Cal. 112, 56 Pac. 779.)

In a proceeding to declare an attempted amendment of articles of incorporation null and void for noncompliance with the law, it reed not be averred that an offer of restitution of the money paid by a subscribing stockholder to the corporation was made. (McDer. mont v. Water Co., 124 Cal. 112, 56 Pac. 779.)

An unexplained delay of forty days in bringing a suit after the amended articles of incorporation were filed, cannot be held to be laches per se, in an action to test the validity of such amendments. (McDermont v. Water Co., 124 Cal. 112, 56 Pac. 779.)

An allegation as to the amendment of articles of incorporation, following the language of section 362, Civil Code, and negativing the facts therein required to be performed to make the amendment valid, is a sufficient allegation to show that that section was not complied with, as against a general demurrer. (McDermont v. Water Co., 124 Cal. 112, 56 Pac. 779.)

The change in the Constitution or by-laws of a mutual benefit society is not an amendment within this section. (Bowie v. Grand Lodge S. W., 99 Cal. 392, 34 Pac. 103.)

CORPORATIONS MAY OWN THEIR LOTS AND BUILDINGS.

Sec. 363, C. C. By a unanimous vote of all the directors at any regular meeting, any corporation existing or hereafter to be formed under the laws of this state may acquire and hold the lots and building on and in which its business is carried on, and may improve the same to any extent required for the convenient transaction of its business. En. Stats. 1889, 67.

Legislative History.

This section superseded an act authorizing owning of lots and building where business carried on: Stats. 1875-76, p. 653.

CORRECTION OF ERRONEOUS FILING OF ARTICLES OF IN.

CORPORATION. Sec. 363, C. C. When articles of incorporation have been prepared, subscribed, and executed in accordance with the provisions of sections two hundred and ninety and two hundred and ninety-two of the Civil Code, and such original articles filed by error or inadvertence with the clerk of a county other than that named in the articles of incorporation as the county in which the principal place of business is to be transacted, and the Secretary of State shall have issued a certificate of incorporation based on a certified copy of such original articles of incorporation, any stockholder or director of such corporation may petition the superior court of the county in which said original articles of incorporation were filed for an order to withdraw such original articles of incorporation, and file in place thereof a certified copy of the copy thereof on file in the office of the Secretary of State. Such petition must be verified, and must state clearly the facts, showing that such articles of incorporation were filed by inadvertence and mistake; and notice of the hearing of said petition must be given for at least ten days before the day of hearing, by publication in a newspaper published in the county where such petition is filed. Upon the day set for hearing the petition the superior court may grant an order allowing such original articles of incorporation to be withdrawn, and a certified copy of the copy in the office of the Secretary of State in the place thereof filed; and the original articles of incorporation must be filed within ten days thereafter in the county in which the principal place of business is to be transacted, as stated in such articles of incorporation, and a certified copy of the order allowing such action must be filed with the certified copy in the office of the Secretary of State, after which said corporation shall be entitled to all rights and privileges of a private corporation, and the title to any property it may have previously acquired shall not be affected by reason of the failure to file the original articles of incorporation in the first instance. En. Stats. 1889, 332.

CORPORATIONS MAY TRANSFER FOREIGN CONCESSIONS.

Sec. 364, C. C. Any corporation of this state owning grants, concessions, franchises, and properties, or any thereof, in any foreign country, may sell and convey the same to the government of such foreign country, or to any person or persons, or any corporation or corporations, or association or associations, created by or existing under the laws of this or any other state or the United States, or any foreign government; proFided, however, that the powers hereby granted shall only be exercised by a majority of the entire board of directors of such corporation of this state, with the concurrence in writing of the holders of two-thirds in amount of the capital stock thereof. En. Stats. 1899, 95.

Corporation Laws-19

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