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of Ky. St. § 4225, providing that every corpo- In 1897 the Home and Savings Fund Comration which may be incorporated by or under pany amended its articles of incorporation by the laws of the state, having a capital stock divided into shares, shall pay an organization changing its name to the Home and Savings tax. After the enactment of the statute the Fund Company Building Association and acstock of the company was increased at inter-cepting the provisions of the Constitution. vals, and upon such increases the statutory tax In June, 1906, another amendment was adoptwas paid. Ultimately the charter was amend

ed, increasing the capital stock from $10,000,- ed, authorizing the association to increase 000 to $15,000,000, prolonging the corporate ex- its indebtedness from $10,000 to $25,000 and istence, about to expire, for 99 years, and chang- increasing its capital stock from $5,000,000 ing the corporate name (which had been chang

ed once before merely to comply with the stat-to $6,000,000. In February, 1907, another ute, that all "building associations" have such amendment was adopted, increasing the capwords in their title) from the Home and Sav-ital stock from $6,000,000 to $7,000,000. In ings Fund Company Building Association to the December, 1907, the articles of incorporation Avery Building Association. Claiming that a new corporation came into existence by virtue were again amended by increasing the capof such charter amendment, the state sued to ital stock from $7,000,000 to $10,000,000. In recover the organization tax on the original 1912 yet another amendment was adopted, incapitalization of the company, which had never creasing the capital stock from $10,000,000 been paid. Held, that while so much of the last amendment of the charter as merely increased to $15,000,000, prolonging the corporate exthe capital stock should not be regarded as the istence for a period of 99 years, and also creation of a new corporation within the mean- changing the corporate name from the Home ing of the statute subjecting such corporations to the payment of an organization tax, the and Savings Fund Company Building Assoradical change made in the name of the associa- ciation to the Avery Building Association. tion and the extension of its life was the crea- The Association paid the organization tax tion of a new corporation, subjecting the orig- on each increase of its capital stock made by inal capital to the payment of the tax. the amendments, but did not pay any organization tax on the original capital stock, as there was no law in force at the time of its creation exacting an organization tax. In 1914 this suit was brought in the name of the commonwealth by a revenue agent, for the purpose of requiring the association to pay the organization tax on its original capital stock of $5,000,000 and a penalty thereon, as provided by statute, of 20 per cent., amounting to $1,000. The lower court ruled that the association must pay the organization tax of $5,000 on its original capital stock and a penalty of $1,000, and this judgment we are asked to reverse.

[Ed. Note. For other cases, see Building and Loan Associations, Cent. Dig. § 3; Dec. Dig. mm 3.]

Appeal from Circuit Court, Franklin County.

Action in the name of the Commonwealth by its revenue agent against the Avery Building Association to compel the payment of an organization tax and recover the penalty for delinquency. Judgment for plaintiff, and defendant appeals. Affirmed.

William Krieger and Thos. A. Barker, both of Louisville, for appellant. John C. Duffy, of Hopkinsville, O'Rear & Williams and J. P. Hobson & Son, all of Frankfort, for the Commonwealth.

CARROLL, J. In 1888, before the adoption of the present Constitution of the state and the laws enacted pursuant thereto, a corporation styled the "Home and Savings Fund Company," with a capital stock of $5,000,000 and a provision for its existence for 25 years, was organized under the general corporation laws of the state, or by special act of the Legislature it is not material which. In 1891 the present Constitution went into effect, and in 1893 the Legislature of the state enacted what is now section 4225 of the Kentucky Statutes, providing that:

The theory of the commonwealth is that the various amendments adopted by the association, and especially the amendment of 1912, had the effect of creating a new corporation, and therefore the present corporation, known as the Avery Building Association, although it has a capital stock of $15,000,000, has paid the organization tax on only $10,000,000 of this capital stock, and therefore it should be required to pay the organization tax on the other $5,000,000, as was held by the lower court. The defense of the Association is that the several charter amendments did not have the effect of creating a new corporation, as they only increased the capital stock, changed the name, and con"Every corporation which may be incorporat- ferred some additional powers on the origed by or under the laws of this state, having inal corporation; and so the corporation has a capital stock divided into shares, shall pay into the state treasury one-tenth of one per paid all the organization tax for which it is centum upon the amount of capital stock which liable. The association further pleads and such corporation is authorized to have, and a relies on the 5-year statute of limitation as like tax upon any subsequent increase thereof. Such tax shall be due and payable on the in- a bar to a recovery of any organization tax, corporation of the company and on the increase in the event it should be held that the effect of the capital stock thereof, and no such corpo- of the amendments was to create a new corration shall have or exercise any corporate pow-poration that would be subject to the organers until the tax shall have been paid, and upon payment it shall file a statement thereof with ization tax if action to recover it had been the secretary of state." taken in seasonable time.

We have had before us several cases deal-1 years and making some other changes in its ing with this question. In Senn v. Levy, 111 corporate affairs. In holding it liable for the Ky. 318, 63 S. W. 776, 23 Ky. Law Rep. 1331, tax, the court said: a creditor of the German-American Title "The amended articles of incorporation did Company brought suit to enforce the pay more than conform to the new statute. They ment of the double liability of stockholders would have expired on May 19, 1911. The new created a new corporation. The old corporation. to creditors under section 547 of the Ken- corporation runs for 25 years from April 19, tucky Statutes. The facts were these: The 1897, and may then be renewed for a like term German-American Real Estate & Investment from time to time. The highest amount of inCompany was incorporated under the Gen-debtedness which the old corporation could inCompany was incorporated under the Gen-cur was $25,000. The new company can issue eral Statutes, before the enactment of sec- a capital stock of one million dollars and may tion 547 of the statutes and at a time when there was no double liability on stockholders. In 1894, and in the manner provided by the Kentucky Statutes for the amendment of articles of incorporation, the charter of this corporation was amended. The amendment changed the name from the German-American Real Estate & Investment Company to the German-American Title Company, increased the number of directors and also the shares of stock each must hold to qualify him as a director, and further authorized the president to appoint an executive committee with such powers as the by-laws might give. In holding that the amendment created a new corporation and subjected the stockholders to the double liability statute in force when the amendment was adopted, the court

said:

"It held itself out to the public, under its new name, as having amended its charter under the act of 1893, as there was no other law under which they could have amended but the act of April, 1893, and that law imposed the double liability sought to be enforced here. The old law had been absolutely repealed. The change made by the amendment was a radical one. A corporation exists only in its corporate name, and a change of name was an abandonment, not only of the corporate name, but of the corporation itself. The old creature was destroyed and a new one sprang into existence, clothed with all the new powers and charged with all the new responsibilities imposed by the statutes which gave it birth. When the stockholders of the old corporation accepted certificates of stock in the new concern, they assented to, and acquiesced in, the amendment, and were thenceforth bound for all the liabilities of the new concern imposed upon it by law. Necessarily the liabilities and burdens are coexistent with the benefits. And there is no difference in principle between a reorganization and an amendment which accomplishes the same purpose."

incur an indebtedness of 20 per cent. of its
paid-up capital. It also enjoys all the rights,
privileges, and powers conferred by the new
statute upon building associations organized
under it. We had this question before us in
Senn v. Levy, 111 Ky. 318, 63 S. W. 776, 23
Ky. Law Rep. 1331, and, according to the prin-
ciples laid down in that case, the old corpora-
tion was destroyed and a new one, with new
powers and new responsibilities, came into ex-
istence.
istence. The reasoning of that case is conclu-
sive of the question."

In Bruner v. Louisville Packing Co., 144 Ky. 471, 139 S. W. 764, the commonwealth sought to collect from the packing company an organization tax on amended articles of incorporation filed by it in 1910. The company was created in 1906, with a capital stock of $750,000 upon which it paid the organization tax at the time of its creation. amended articles merely reduced the capital stock from $750,000 to $350,000, and changed the name of the corporation from Louisville Packing Company to New Louisville Packing Company. In the course of the opinion the court said:

The

change in the name of the corporation, accom"It may be that, where there has been a panied by a substantial change in the scope, rights, and powers of the corporation, the amended articles of incorporation have the effect of creating a new corporation. Com. v. Licking Valley Building Ass'n, 118 Ky. 791 [82 S. W. 435, 26 Ky. Law Rep. 730]. No such case is here presented. No new rights or powers were conferred by the amended articles. The change in the name itself was slight. It was authorized and made in the manner pointed out by the statute. No new corporation was created. It is simply a case where the old corporation is continued under a slightly changed name, for exactly the same length of time, and with precisely the same rights and powers as were provided in the original articles of incorporation. Being the same corporation and having paid the tax once, and there being nothCom. v. Licking Valley Building Associa-ing in the statute requiring that it be paid the tion, 118 Ky. 791, 82 S. W. 435, 26 Ky. Law second time, it follows that the judgment of the Rep. 730, was a suit by the commonwealth to lower court was proper." recover an organization tax. The defense was that the association had been incorporated under the general laws of the state previous to the adoption of the present Constitution and the laws regulating corporations now found in the Kentucky Statutes, and hence it was not liable for the payment of this tax. It appears that by the original articles the capital stock of the association was $1,000,000, divided into 2,000 shares of the par value of $500 each. The period of its corporate existence was fixed at 25 years, which expired in May, 1911. In April, 1911, amended articles of incorporation were filed, extending the life of the corporation for 25

In Ohio Valley Tie Co. v. Bruner, 148 Ky. 358, 146 S. W. 749, the question before the court was whether a corporation which had once paid this tax must pay it again when it proceeds to extend its corporate existence by amendment. The court answered this question in the negative, saying:

"If the corporation, however, should, by amendment, substantially change, its scope, rights, and powers, there might be a consequent right to exact the organization tax; but that question is not here for decision. The ground of its collection in such a state of case would change were so substantial or material as to rest upon the determination of whether the create in fact a new corporation. For the sake of clearness it is to be borne in mind that this

decision applies to corporations which have | So much of this last amendment as merely once paid the tax. Should a corporation, organ- increased the capital stock should not be ized under chapter 56 of the General Statutes, regarded as the creation of a new coralthough already in possession of a corporate existence, seek the benefits flowing from the poration within the meaning of the statute general corporation laws of the Kentucky Stat- subjecting new corporations to the payment utes by organizing or amending under them, it of an organization tax; but the radical would need to pay its organization tax once. This was expressly held in Com. v. Licking Val- change made in the name of the association, ley Building Ass'n, 118 Ky. 791 [82 S. W. 435, as well as the extension of its life, must, 26 Ky. Law Rep. 730]. But it would need to we think, be treated as the creation of a pay the tax only once, just as those created un-new corporation, subject to the payment of der the present general corporation law need to pay only once."

this tax.

In Com. v. Southern Pacific Co., 164 Ky. It was held in Senn v. Levy, supra, that 818, 176 S. W. 375, the question before the changing the name of the company from court was whether certain amendments, sub- the German-American Real Estate Investsequent to the enactment of section 4225, ment Company to the German-American Tito the charters of the corporations, which tle Company was such a radical change as had been created prior to the present Con- to create, in fact, a new corporation substitution, so changed the nature and char-ject to the laws in force when the amendacter of these corporations as to make them, ment was adopted. in effect, new corporations, subject to the payment of the organization tax on the original capital stock, and the court said they did not.

In the Licking Valley Building Association Case the association extended by amendment to its charter its life, which was about to expire, and conferred upon the association some powers that it did not enjoy under the old charter; and this amendment was held to create a new corporation.

These cases are the only ones dealing with the matter now before us, and the precise question we have was not directly involved in any of them, although these cases furnish In the Louisville Packing Company Case material aid in determining the question here presented.

the corporation was created in 1906 and paid an organization tax on its capital stock. [1] It will be observed that the original After this it reduced its capital stock and name of this association was the Home and changed its name from Louisville Packing Savings Fund Company, and that in 1897 it Company to New Louisville Packing Comchanged its name by amendment to that pany. But the court said this was not the of the Home and Savings Fund Company creation of a new corporation, and did not Building Association. This amendment subject the corporation to the payment of an merely added the words "Building Associa- organization tax on the new and reduced tion" to the title, and it may be conceded capital stock authorized by the amendment. that these additional words were merely added to comply with section 856 of the Kentucky Statutes, providing that the words "Building Association" must form a part of the name of every building and loan association. Under these Under these circumstances, we do not think this amendment had the effect of creating a new corporation, as it did not change, in any material manner, the name or the powers or privileges conferred on the original corporation by the act creating it.

It is insisted that this opinion, in effect, overruled Senn v. Levy. We do not so construe it. In holding that the slight change in the name did not have the effect of creating a new corporation, the court was largely influenced by the fact that this corporation had paid an organization tax once on all of its capital stock. This was really the controlling point in the decision, and this point was reiterated in the Ohio Valley Tie Company Case.

In the case we have we find that a cor[2] The amendments of 1906 and 1907 poration known as the Home and Savings merely increased the capital stock, and au- Fund Company or as the Home and Savthorized the association to increase its in- ings Fund Company Building Associationdebtedness above the sum designated in its it is not material which-was created, with original charter; and we are inclined to a capital stock of $5,000,000, before the statthink that these amendments did not have ute authorizing the collection of an organithe effect of so changing the powers or priv-zation tax was enacted. We find that by ileges of the association as to make it a various amendments to its charter this orignew corporation in the sense that all of its capital stock would be subject to the payment of the organization tax.

inal corporation has been converted into a corporation styled the Avery Building Association, with an authorized capital stock [3] But in 1912 another amendment to the of $15,000,000. On $10,000,000 of this capital charter was adopted, increasing the capital stock it has paid this organization tax, but stock from $10,000,000 to $15,000,000, prolong- on $5,000,000 of it, it has not. So that we ing the corporate existence, which was then have now a new corporation with a capital about to expire, for a period of 99 years, and stock of $15,000,000 upon $5,000,000 of changing the corporate name from the Home which the organization tax has never been and Savings Fund Company Building As- paid.

and transmitted, will not require dismissal, where the clerk copied, at the instance of the plaintiff, the entire record in the case, and certified that the transmitted record, together with the stenographer's transcript of the evidence, signed by the judge, and indorsed by the clerk, was a true and correct copy of the case as it appeared of record in his office.

[Ed. Note.--For other cases, see Appeal and Error, Cent. Dig. §§ 2789, 2790; Dec. Dig. und. 641.]

ed difference between this case and the Louisville Packing Company Case and the Ohio Valley Tie Company Case, as in each of those cases the corporation had paid the organization tax on the full amount of its authorized capital stock in existence at the time it was sought to again subject the stock to the payment of another organization tax. In the Southern Pacific Company Case the names of the corporations were not changed, the amendments merely conferring upon them larger and other powers than were authorized by the original articles of incorporation. But these powers were in the line of the powers conferred by the original charter, and did not, as the court held, make any material or radical change in the nature of the business the corporations were authoriz-injunction against threatened trespass for the ed by their original charters to carry on.

2. TRIAL 11-EQUITY CASE-TRANSFER TO

COMMON-LAW DOCKET.

Under Civ. Code Prac. § 6, providing that actions of which courts of chancery had exclusive jurisdiction before the 1st day of August, 1851, must be equitable, and Čiv. Code Prac. § 12, providing for the transfer of issues of fact in equity cases to the ordinary docket for trial upon motion of the parties, it was error to transfer an action seeking an

lack of adequate remedy at law, which involved an issue of fact regarding a boundary, to the to return a general verdict, since, the sole recommon-law docket, with directions to the jury lief asked being by way of injunction, the action is purely equitable, though depending on an issue of fact.

Dig. § 30; Dec. Dig. 11; Action, Cent. Dig. 312]

[Ed. Note.-For other cases, see Trial, Cent.

EQUITY 377-ISSUE OF FACT TO JURY. In such case the proper practice is to order an issue out of chancery submitting only the question of fact to the jury. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 788-793; Dec. Dig.

This case, we think, falls distinctly within the rule announced in Senn v. Levy; and, adhering to the doctrine announced in that case, we see no escape from the conclusion that this corporation is liable for the organization tax on $5,000,000 of its capital stock. If it should not be required to pay this, it would necessarily follow that a corporation organized under the old statute 3. could, in fact, become a new corporation, with new powers and privileges, and yet be exempt from the payment of the organization tax to which all other new corporations are subjected. It was manifestly the pur-4. EQUITY 381-ISSUE OF FACT TO JURYpose of the new legislation to put all corporations as nearly as might be on the same footing so far as the general laws of the state were concerned, and if this corporation is not subject to the statute imposing an organization tax, it would be difficult to so amend the charter of an old corporation as to bring it under the influence of this statute.

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The defense that the right of the commonwealth to enforce the collection of this tax is barred by the 5-year statute of limitation must be held unavailing, as this suit was brought within 5 years from 1912, when the amendment was adopted that made this corporation subject to the organization tax. We do not, however, decide, as it is not necessary so to do, that the 5-year statute would bar the collection of the tax if the amendment that converted the old into a new corporation had been adopted more than 5 years before the organization tax was sought to be collected. In short, we merely mention this question of limitation in passing. The judgment is affirmed.

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WEIGHT OF VERDICT.

377.]

sue of fact is submitted to a jury, the chancellor
Where, in a purely equitable action, an is-
may disregard the verdict and enter judgment
upon his own view of the weight of the evi-
dence, as the verdict is merely advisory, and
jury in a common-law action.
not entitled to the weight of the verdict of a

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 813-817; Dec. Dig. 381.]

5. APPEAL AND ERROR 301-PRESENTATION
OF GROUND OF REVIEW-MOTION FOR NEW
TRIAL NECESSITY TRANSFER TO LAW
DOCKET.

appeal of the error of the court below in transIt is no objection to the consideration on ferring the case to the common-law docket that such error was not made a ground for new trial, since such error occurred before the trial. Error, Cent. Dig. §§ 1743, 1753-1755; Dec. [Ed. Note.-For other cases, see Appeal and Dig. 301.]

6. WITNESSES 345-IMPEACHMENT ARREST ON CRIMINAL CHARGE.

Under Civ. Code Prac. § 597, providing that a witness may be impeached by contradiction, by evidence of statements conflicting with his testimony, and by evidence of his bad general reputation, but not by evidence of particular wrongful acts, except that his conviction of felony may be shown by his examination or the record of the judgment, evidence that a witness had been arrested on a charge of false swearing was inadmissible, in the absence of any attempt to show a conviction.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. 345.]

Appeal from Circuit Court, Letcher County. Action by the Consolidation Coal Company against Sam Vanover. Judgment dismissing

plaintiff's petition, and plaintiff appeals. 1 tion in transferring the case to the commonReversed and remanded. law docket. Section 6 of the Civil Code provides:

Hager & Stewart, of Ashland, Jesse Morgan and B. P. Wootton, both of Hazard, and L. E. Harvie, of Whitesburg, for appellant. Roscoe Vanover, of Pikeville, and David Hays, of Whitesburg, for appellee.

CLAY, C. Alleging that it was the owner and in the actual possession of a certain tract of land on Elkhorn creek, in Letcher county, and that the defendant, Sam Vanover, threatened to enter on said land, tear down the dwelling house thereon, and commit other acts of trespass, plaintiff, the Consolidation Coal Company, brought this action against the defendant to enjoin him from trespassing on said land. The defendant pleaded, in substance, that he was the owner of a particularly described part of the land in question, and denied that he was threatening to tear down the dwelling house or commit any acts of trespass on any portion of the land claimed by plaintiff, except that which he himself owned. Over the objection of the plaintiff, the case was transferred to the common-law docket. A trial before a jury resulted in a verdict and judgment for the defendant. Plaintiff appeals. [1] We are met at the outset by a motion of the defendant to dismiss the appeal, because plaintiff failed to file a schedule in the lower court, and the clerk of that court failed to certify that the entire record had been copied and transmitted to this court. In reply to this contention, it is sufficient to say that the clerk below copied, at the instance and direction of the plaintiff, the entire record in the case, and his certificate shows that the transmitted record, together with the stenographer's transcript of the evidence, signed by the judge, and indorsed by the clerk, is a true and correct copy of the case as it appears of record in his office. The motion to dismiss the appeal is therefore overruled.

The description of the tract in the deed under which plaintiff holds is, in part, as follows:

"Beginning at an oak tree on line of Jane Vanover's at ford of creek above Jane Vanover's residence."

There are two oak trees near the ford of the creek; the plaintiff claiming one as the beginning corner, and the defendant the other. On the decision of this issue of fact depended plaintiff's right to relief. The court did not direct an issue out of chancery for the purpose of trying this issue of fact, but transferred the case to the common-law docket and directed the jury to find either for the plaintiff or the defendant on the whole case. Upon the jury returning a verdict for the defendant, the court entered a judgment dismissing plaintiff's petition.

[2] The principal question presented by the appeal is the propriety of the court's ac

"Unless otherwise provided by this Code or chancery had jurisdiction before the 1st day other statute: 1. Actions of which courts of of August, 1851, may be equitable; and actions of which such jurisdiction was exclusive must be equitable. 2. All other actions must be ordinary.

Section 12 of the Civil Code provides:

"In an equitable action, properly commenced as such, either party may, by motion, have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial; but either party may require every equitable issue to be disposed of before such transfer."

This is not an action for damages or mere trespass to try title. It is not an action where other than injunctive relief was asked, and the injunctive relief was merely ancillary to the main relief. It is a case where the only relief asked was an injunction restraining the defendant from committing certain threatened acts of trespass on the property in question. This relief was asked on the ground that the defendant was insolvent and plaintiff had no other adequate remedy at law. Where relief by way of injunction is the sole and only relief asked, such an action was purely equitable before the 1st day of August, 1851, and courts of chancery alone had jurisdiction. The action being purely an equitable one, though depending on an issue of fact, it was error on the part of the chancellor to transfer the case itself to the common-law docket, with directions to the jury to return a general verdict. The proper practice in such a case is to order an issue out of chancery and submit only the question of fact to the determination of the jury.

[3, 4] In a case like this of a purely equitable character, the verdict of the jury is merely advisory, and is not entitled to the weight of the verdict of a jury in a common-law action. In the latter case, the verdict can only be set aside when flagrantly against the evidence; whereas, in a case like this, the chancellor may disregard the verdict and enter judgment in conformity with his view of the Weight of the evidence. Bannon v. Patrick Bannon Sewer Pipe Co., 136 Ky. 556, 119 S. W. 1170, 124 S. W. 843.

[5] There is no merit in the contention that the error of the court in transferring the case to the common-law docket cannot be considered, because it was not made a ground for a new trial. Being an error that occurred before the trial, it was not a part of the trial, and it was not, therefore, necessary to make it a ground for a new trial. on the same plane as any other error occurring before the trial commenced.

[6] Over the objection of plaintiff, defendant was permitted, on the cross-examination of plaintiff's witness, Newt Fannin, to show that Fannin had been arrested on a warrant charging him with false swearing and taken

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