Montana Attorney General Opinion 15-600

Opinion No. 600 Corporations-Articles of IncOl-pora- tion, Amendment of-Directol's, Nwnbel' of-8ecretary of State. HELD: The statutes require that the number of directol's of a corporation be stated definitely hoth in t'he articles of incorporation and in amendments to articles of incorporation which amend the articles in that respect. August 25, 1934. In your letter to me of recent date you requested my opinion on the ques- tion of whether or not an amendment to the articles of incorporation of the Santa Rita Oil and Gas Company, which in part is as follows: "That the number of directors or trustees of this corporation shall not be less than three nor more than seven," sufficicntly com- plies with the law. Section 5905, Revised Codes 1921, a;;; amended by section 1 of Chapter 3;', Laws of 1931, provides: "Articles of incorporation must be prepared setting forth: "1. The name of the corporation; * * * "5. The number of its directors or trustees, which shall not be less than three nor more than thirteen * * *." Section 5918, Revised Codes 1921, as amended by section 1 of Chapter 38, La ws of 1931, provides: "Any corporation organized under any of the laws of the State of Mon- tana * * * may * * * amend its ar- ticles of incorporation by changing the * * * number of directors * * *." In this state, corporations are or- ganized under the general laws, and are therefore creatures of statute, and can be brought into existence only hy substantial compliance with statutory provisions. The statute is in the na- ture of a general grant of the right to c.xercise corporate franchises to such persons as may comply with its terms. The instrument called "articles of in- corporation" constitutes the evidence of the acceptance of the terms and conditions contained in the statute. 'fhe requisites of the instrument are clearly stated in section 5905 as amend- ed. If anyone of these is omit.ted, such omission' is a fatal defect and no de jure right to exercise corporate fran- chises exists. 'fhe number of directors must, therefore, be stated definitely because the statute so requires. (Bates Y. 'Vilson, 24 Pac. 99; Merges Y. Alten- hrand, 45 Mont. 355; Martin v. Deetz. 3H Pac. 368; In re Daughters of Israei Orphan Aid Soc., 210 N. Y. S. 541; 1 412 OPINIONS OF THE ATTORNEY GENERAL Fletcher's Cyclopedia Corporations, sec. 145; 14 C .. J. 118-120.) Unquestionably the requirement that the number of directors to be definitel~' set forth is as imperath'e in the case of an amendment like the one in ques- tion as it, is in the case of the origina I articles of incorporation. The statute can be given no other sensible meaning.