CHAPTER 49-33
ELECTRIC, STREET RAILWAY AND GAS CORPORATIONS
49-33-1 Incorporation of company--Articles of incorporation--Perpetual existence--Reinstatement of articles as amended.
49-33-2 Provisions applicable to gas companies.
49-33-3 Affidavit of incorporators--Contents--Filing with secretary of state--Fee of secretary.
49-33-4 Certificate of incorporation--Corporate name--Rights conferred by certificate.
49-33-5 Powers of corporation--Operation of business.
49-33-5.1 Powers of corporation--Business corporation powers.
49-33-6 Powers of corporation--Survey of proposed route--Entry upon property.
49-33-7 Powers of corporation--Buildings and accessory facilities--Contracts with municipalities.
49-33-8 Powers of corporation--Holding property.
49-33-9 Powers of corporation--Purchase of property--Disposition of unneeded property.
49-33-10 Powers of corporation--Right-of-way--Condemnation of land--Alteration of roadways--Expenses.
49-33-11 Powers of corporation--Connection with other facilities--Use of facilities--Accessory facilities.
49-33-12 Powers of corporation--Rules and regulations--Rates--Discrimination prohibited.
49-33-13 Powers of corporation--Extraterritorial powers.
49-33-14 Board of directors--Election and term of office--Voting for directors--Vacancies.
49-33-14.1 Bylaws--Adoption, amendment or repeal by board.
49-33-14.2 Annual and special meetings of stockholders--Quorum--Notice.
49-33-15 Director as stockholder--Minimum stock ownership.
49-33-16 49-33-16. Repealed by SL 1986, ch 396, § 5.
49-33-17 Officers of corporation.
49-33-18 Books and records--Exhibition to stockholders--Right to examine by certain stockholders.
49-33-19 Capital stock subscription.
49-33-20 Failure to pay for subscription--Collection by directors--Forfeiture of amounts previously paid.
49-33-21 Transfer of stock--Stock deemed personal property.
49-33-22 Increase in capital stock and amendment of articles of incorporation--Majority vote or greater required.
49-33-23 Issuance of preferred stock.
49-33-24 Series of preferred stock--Characteristics of stock--Dividends--Voting powers.
49-33-25 Certificate of issuance of preferred stock--Filing with secretary of state.
49-33-26 Increasing or decreasing preferred stock--Resolution of directors.
49-33-27 Liability of stockholders--Stock held by fiduciary or as collateral security.
49-33-28 Holding of stock in other corporations.
49-33-29 49-33-29. Repealed by SL 1986, ch 396, § 10.
49-33-30 Consolidation or merger with other corporations--Approval of plan.
49-33-31 Articles of incorporation requiring greater vote control.
49-33-1. Incorporation of company--Articles of incorporation--Perpetual existence--Reinstatement of articles as amended.
Any number of persons, not less than three, may form a corporation for the purpose of constructing, maintaining and operating a street railway or railways or for the purpose of generating, transmitting or distributing electricity, the same to be sold to or used by the public for heat, light or power, by making and executing articles of incorporation in compliance with §§ 47-1A-202 to 47-1A-202.3, inclusive, and §§ 47-1A-627 to 47-1A-627.2, inclusive. Such corporation shall exist perpetually unless otherwise stated in its articles of incorporation and shall have the power to engage in other businesses set forth therein.
Any corporation organized under chapter 49-33 may at any time restate its articles of incorporation as theretofore amended by a resolution adopted by its board of directors. The secretary of state shall accept the restated articles of incorporation for filing upon receipt of a certified copy of said resolution.
Source: SDC 1939, § 52.1501; SL 1947, ch 236, § 1; SL 1986, ch 396, § 1; SL 2005, ch 202, § 9.
49-33-2. Provisions applicable to gas companies.
All of the provisions of this chapter and chapter 49-34 shall apply to corporations organized for the purpose of manufacturing, producing, supplying, or transporting gas, natural or artificial, and such corporation shall possess and may exercise and enjoy, as to organization, control, management, and operation, all of the privileges, rights, powers, and franchises possessed by electric light and power corporations, so far as they are consistent therewith.
Source: SDC 1939, § 52.1801.
49-33-3. Affidavit of incorporators--Contents--Filing with secretary of state--Fee of secretary.
There shall be annexed to the articles of incorporation described by § 49-33-1 an affidavit, signed by at least three of the incorporators therein, setting forth that the signatures thereto are genuine and that it is intended in good faith to construct or maintain and operate the street railway or railways or electric lighting and power plants therein referred to, and thereupon such articles shall be filed in the office of the secretary of state, who shall endorse thereon the date thereof and record the same in a book to be kept by him for that purpose. The secretary of state shall be entitled to the same fees provided by law for the filing and recording of articles of incorporation in this state; like fees shall be paid for any amendment at any time of the original articles.
Source: SDC 1939, § 52.1501 (5); SL 1947, ch 236, § 1; SDC Supp 1960, § 52.1501 (6).
49-33-4. Certificate of incorporation--Corporate name--Rights conferred by certificate.
Upon the filing and recording of articles of incorporation pursuant to § 49-33-3 a certificate shall issue to such corporation under the seal of this state, signed by the secretary of state, granting unto such incorporators, their associates, successors, and assigns, full power and authority by and under their corporate name to exercise the powers and privileges of a corporation for the purpose stated in § 49-33-1 and in accordance with their articles of incorporation and the laws of this state.
Source: SDC 1939, § 52.1501 (5); SL 1947, ch 236, § 1; SDC Supp 1960, § 52.1501 (6).
49-33-5. Powers of corporation--Operation of business.
Upon the issue of a certificate pursuant to § 49-33-4 the subscribers to such articles of incorporation, and all persons who shall thereafter become stockholders in such corporation, shall be a corporation by the name of and may engage in the businesses specified in such articles and shall possess all the powers and be subject to all provisions of law relating to street railways and electric light and power companies and the provisions of this chapter and chapter 49-34 applicable thereto. And the rights and powers provided in said chapters with respect to street railways and electric companies shall be construed to extend and apply to the businesses engaged in by such corporation pursuant to the provisions hereof with respect to rights of way, acquisition and use of property, franchises, extensions of service and consolidations as the same relate to and are consistent with said businesses.
Source: SDC 1939, § 52.1502; SL 1947, ch 236, § 2.
49-33-5.1. Powers of corporation--Business corporation powers.
In addition to all provisions and powers in chapters 49-33 and 49-34 that are applicable to corporations organized under those chapters, all provisions and powers set forth in the South Dakota Business Corporation Act, §§ 47-1A-101 to 47-1A-863.3, inclusive, §§ 47-1A-1401 to 47-1A-1440, inclusive, and §§ 47-1A-1601 to 47-1A-1703.1, inclusive, applicable to domestic corporations are also applicable to corporations that have been or will be organized under chapters 49-33 and 49-34 except if in conflict with the express provisions of chapters 49-33 and 49-34.
Source: SL 1981, ch 337; SL 2005, ch 202, § 12; SL 2021, ch 200, § 3.
49-33-6. Powers of corporation--Survey of proposed route--Entry upon property.
Every corporation organized under this chapter shall have power to cause such examinations and surveys to be made as may be necessary to the selection of the most advantageous route for its proposed street railroad, electric light, or power line, and for such purpose to enter, by its agents, officers, and servants, upon the lands or waters of any person; subject, however, to responsibility for all damage done to such property by such entry.
Source: SDC 1939, § 52.1509 (1).
49-33-7. Powers of corporation--Buildings and accessory facilities--Contracts with municipalities.
Every corporation organized under this chapter shall have power to erect and maintain such buildings, powerhouses, plants, poles, substations, wires, trolleys, and appliances as may be necessary for the transmission of electric power and use the same to operate its street railway, electric light, or power line, and to contract with any person or corporation for the furnishing to such person or corporation of electric light, heat, or power; to contract with any municipality, or county for the lighting of its streets, highways, and public buildings, and for furnishing power, and to contract with any municipal corporation for the furnishing of its inhabitants with electric light, heat, and power.
Source: SDC 1939, § 52.1509 (2); SL 1992, ch 60, § 2.
49-33-8. Powers of corporation--Holding property.
Every corporation organized under this chapter shall have power to take and hold such voluntary grants of real and other property as may be made to it to aid in the construction, maintenance, and accommodation of its railways, power or lighting plants, but the real property received by voluntary grant shall be held and used for the purpose of such grant only.
Source: SDC 1939, § 52.1509 (3).
49-33-9. Powers of corporation--Purchase of property--Disposition of unneeded property.
Every corporation organized under this chapter shall have power to acquire by purchase or under the provisions of chapter 49-34 all such real and other property as may be necessary for the operation of its railway, power and lighting plants and grounds and accommodation reasonably necessary to accomplish the objects of its incorporation; to hold and use the same; and to lease, sell, or otherwise dispose of any part or parcel when not required and no longer necessary for its use.
Source: SDC 1939, § 52.1509 (4).
49-33-10. Powers of corporation--Right-of-way--Condemnation of land--Alteration of roadways--Expenses.
Every corporation organized under this chapter shall have power to lay out its road not exceeding fifty feet in width and construct the same, and for such purpose to obtain gravel or other material for its cuttings and embankments; to take so much land as may be necessary for the construction, operation, and safety of its road, electric light or power line, including right-of-way and water for ditches, canals, or flumes by which to generate electricity therefor; to construct its road, electric light or power line along or across any stream of water, river, watercourse, highway, street, or turnpike, which it may touch or intersect; to carry any highway, street, or road which it shall cross over or under its track as may be most expedient for the public safety and welfare; to change the course of any highway, street, or road when made necessary or desirable to secure a more easy descent or ascent by reason of any cut or embankment made in the construction of its railroad and to take so much land as shall be necessary therefor; provided that such change in the course of any street, road, or highway shall be made at the expense of such corporation and without expense to the municipality wherein such change is made.
Source: SDC 1939, § 52.1509 (5); SL 1992, ch 60, § 2.
49-33-11. Powers of corporation--Connection with other facilities--Use of facilities--Accessory facilities.
Every corporation organized under this chapter shall have power to cross, join, or unite its railroad with any street or other railroad now or hereafter constructed and to contract with such railroad for the transportation of its cars over its lines; to take and convey persons or property over its railroad by electrical or mechanical power, and to receive compensation therefor; and to erect and maintain all necessary and convenient buildings, station powerhouses, trolley poles, repair shops, carbarns, wires, fixtures, and machinery for the accommodation and use of its passengers, freight, and other business and the transmission of electric power.
Source: SDC 1939, § 52.1509 (6).
49-33-12. Powers of corporation--Rules and regulations--Rates--Discrimination prohibited.
Every corporation organized under this chapter shall have power to regulate the time and manner in which passengers and property shall be transported and the compensation to be paid therefor, but in so doing no preference, advantage, or monopoly shall be given to any person, company, or corporation doing business with it or doing business at more than one point along the line of its road.
Source: SDC 1939, § 52.1509 (7).
49-33-13. Powers of corporation--Extraterritorial powers.
Every corporation organized under this chapter shall have power to exercise all its rights, franchises, and privileges in any other state of the United States and to accept from any other state into which its railroad, electric light, or power line is extended additional and other powers and privileges applicable to the business of such corporation in such territory.
Source: SDC 1939, § 52.1509 (8).
49-33-14. Board of directors--Election and term of office--Voting for directors--Vacancies.
There shall be a board of not less than three directors, and such greater number as the bylaws shall designate, to manage the business and affairs of such corporation, who shall be elected at such time, in such manner and for such terms as shall be prescribed by its bylaws and shall hold their office until their respective successors shall be chosen. In the election of directors and at all corporate meetings, each stockholder is entitled to one vote in person or by proxy for each share of stock owned by him. Each stockholder entitled to vote has the right to multiply the number of votes to which such stockholder may be entitled by the number of directors to be elected at the meeting at which the votes are to be cast and cast all of such votes for one candidate, or distribute them among two or more candidates as the stockholder prefers. Vacancies in the board of directors shall be filled in the manner prescribed by the bylaws.
Source: SDC 1939, § 52.1504; SL 1986, ch 396, § 4.
49-33-14.1. Bylaws--Adoption, amendment or repeal by board.
The bylaws of a corporation organized under chapter 49-33 shall be initially adopted and may be altered, amended or repealed thereafter by the board of directors.
Source: SL 1986, ch 396, § 2.
49-33-14.2. Annual and special meetings of stockholders--Quorum--Notice.
All annual and special meetings of stockholders of a corporation organized under chapter 49-33 shall be called by the board of directors. The quorum required for such meetings shall be set forth in the bylaws of the corporation. Written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, or by or at the direction of the president or secretary, to each stockholder of record, as of the record date, entitled to vote at such meeting. However, in order to comply with S.D. Const., Art. XVII, § 8, if at an annual or special stockholders' meeting, the stockholders are to vote, either as a single matter or as one matter among another or more matters, on an increase in the stock or indebtedness of the corporation, the notice of such meeting shall be delivered, personally or by mail, not less than sixty nor more than eighty days before the date of the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid.
Source: SL 1986, ch 396, § 3.
49-33-15. Director as stockholder--Minimum stock ownership.
No person shall be a director of a corporation organized under this chapter unless he is a stockholder thereof owning absolutely in his own right, or as trustee or personal representative, at least ten shares of the capital stock of such corporation and must be duly qualified to vote such stock at the election at which he shall be chosen.
Source: SDC 1939, § 52.1504.
49-33-17. Officers of corporation.
The directors shall appoint a president and vice-president; they may also appoint a secretary, treasurer, and such other officers or agents as are prescribed by the bylaws.
Source: SDC 1939, § 52.1505; SL 1986, ch 396, § 6.
49-33-18. Books and records--Exhibition to stockholders--Right to examine by certain stockholders.
The books and records of account and minutes of a corporation organized under this chapter shall be exhibited to its stockholders at every stockholders' meeting, if a majority of those present require it. Any person or group of persons who are the holders of record of at least ten percent of all the outstanding shares of such corporation, upon written demand stating the purpose thereof, have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper corporate purpose, its books and records of account, minutes and record of shareholders and to make extracts therefrom.
Source: SDC 1939, § 52.1504; SL 1986, ch 396, § 7.
49-33-19. Capital stock subscription.
When a certificate is issued pursuant to § 49-33-4, the directors of such corporation may, in case the whole of the capital stock shall not have been before subscribed, open books of subscription to fill up the capital stock at such places and upon such notice as they may deem expedient, and may from time to time receive subscriptions until the whole of the capital stock is subscribed.
Source: SDC 1939, § 52.1503.
49-33-20. Failure to pay for subscription--Collection by directors--Forfeiture of amounts previously paid.
The directors may require any amounts unpaid upon the capital stock to be paid in such manner, at such times and in such installments as they may deem proper. If any stockholder shall neglect to pay any installment of such capital stock as required by a resolution of the board of directors and such board shall have caused a notice to be served upon such stockholder personally, or by depositing the same in the post office directed to such stockholder at his usual and nearest post-office address at least thirty days before the day on which such payment is required to be made, stating that he is required to make such payment at the time and place specified in such notice and that, if he fails to do so, such stock and all payments previously made thereon will be forfeited to the use of the corporation, such board of directors may, by resolution, declare such stock and all payments forfeited for the use of the corporation and the same shall thereupon be forfeited and the title thereto shall revest in the corporation, or such board may, at its option, enforce payment of the installments due on such shares of the capital stock in the manner provided by law.
Source: SDC 1939, § 52.1506.
49-33-21. Transfer of stock--Stock deemed personal property.
The stock of every corporation organized under this chapter is deemed personal property and is transferable in the manner prescribed by its bylaws, and subject to the provisions of §§ 57A-8-301 to 57A-8-307, inclusive and 57A-8-401 to 57A-8-407, inclusive, but no share is transferable until all previous calls and assessments on the share have been fully paid.
Source: SDC 1939, § 52.1507; SL 2021, ch 200, § 4.
49-33-22. Increase in capital stock and amendment of articles of incorporation--Majority vote or greater required.
The capital stock of any corporation organized under this chapter may be increased to such an amount as may, by its stockholders, be deemed necessary, and the articles of incorporation may be amended by the vote of the owners of a majority of its capital stock, or such greater proportions of the shares of capital stock, or of any class or series thereof, as provided in the corporation's articles of incorporation, at any annual meeting or at any special meeting called for that purpose.
Source: SDC 1939, § 52.1508; SL 1986, ch 396, § 8.
49-33-23. Issuance of preferred stock.
Notwithstanding the provisions of §§ 47-1A-601 to 47-1A-640.5, inclusive, a corporation, now or hereafter formed under the provisions of this chapter may provide in its articles of incorporation, or in any amendment thereof, for the issuance of preferred stock in series and authorize the board of directors (within the limits, if any, prescribed in such articles of incorporation or amendment) to fix certain or all of the characteristics and rights thereof.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211; SL 2005, ch 202, § 10.
49-33-24. Series of preferred stock--Characteristics of stock--Dividends--Voting powers.
Upon the adoption or amendment of the articles of incorporation to include the provisions authorized by § 49-33-23, the board of directors may cause such preferred stock to be issued in one or more series, in such amounts and with such terms and characteristics, (within such prescribed limits, if any), as may be set forth in a resolution or resolutions of the board of directors adopted prior to the issuance of shares of the respective series. Such terms and characteristics may include, within such limits, variations and provisions as to distinctive serial designations (including a change or variation in the existing designation of the authorized but unissued shares of any class of preferred stock), as to the rate or rates of dividends payable thereon, as to the times of payment of and the dates from which such dividends shall be cumulative, as to the prices and terms upon which the same may be redeemed, as to the amount or amounts which shall be paid to the holders thereof in case of voluntary or involuntary dissolution or distribution of assets, as to voting powers, if any, and as to the other characteristics of and any restrictive or other provision relating to such series.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211.
49-33-25. Certificate of issuance of preferred stock--Filing with secretary of state.
Upon the creation of any series of preferred stock pursuant to § 49-33-24 and before the issuance of any shares thereof, the number of shares of such series and the designation, characteristics, and terms thereof provided for in such resolution or resolutions shall be set forth in a certificate made by the corporation, signed by its president or vice-president under the corporate seal, attested by its secretary or an assistant secretary and acknowledged or proved, as in the case of deeds of real estate, which certificate shall be filed in the Office of the Secretary of State.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211.
49-33-26. Increasing or decreasing preferred stock--Resolution of directors.
Unless otherwise provided in any resolution or resolutions pursuant to § 49-33-24 the number of shares of stock of any series set forth in such resolution or resolutions may be increased or decreased (but not below the number of shares thereof then outstanding) by a certificate made and filed as provided by § 49-33-25 setting forth a statement that a specified increase or decrease therein has been authorized and directed by resolution or resolutions likewise adopted by the board of directors; and in case the number of such shares shall be so decreased the number of shares so specified in said certificate shall resume the status which they had prior to the adoption of the first resolution or resolutions.
Source: SDC 1939, § 52.1518 as enacted by SL 1949, ch 211.
49-33-27. Liability of stockholders--Stock held by fiduciary or as collateral security.
No person holding stock in any corporation organized under this chapter as personal representative, conservator, or trustee, and no person holding such stock as collateral security, is liable as stockholder of such corporation for any calls or installments on any partially paid-up stock thereof; but the person pledging such stock shall be considered as holding the same and is liable as a stockholder accordingly; and the estate and funds in the hands of such personal representative, conservator, or trustee is liable to the same extent as the decedent, ward, or other person interested would have been, if living or competent to act and holding stock in his own name.
Source: SDC 1939, § 52.1507; SL 1993, ch 213, § 248; SL 1995, ch 167, § 188.
49-33-28. Holding of stock in other corporations.
Any corporation organized under this chapter may purchase, take, and hold all or any part of the property, rights, privileges, and franchises of any other corporation, foreign or domestic, organized for the purpose of operating any street railway by electric power or for the purpose of manufacturing, creating, or generating electricity for power, light, heat, or any other purpose, and may take and hold stock and in its corporate capacity become a subscriber to the capital stock of any other corporation or corporations.
Source: SDC 1939, § 52.1512; SL 1986, ch 396, § 9.
49-33-30. Consolidation or merger with other corporations--Approval of plan.
Any corporation organized under chapter 49-33 may merge with any one or more other corporations, domestic or foreign, into a single corporation, which may be any one of the constituent corporations, or may consolidate with any such corporations into a new corporation formed by the consolidation. Each of the constituent corporations shall enter into a plan of merger or consolidation. Such plan shall, in the case of each corporation organized under this chapter, first be approved by the board of directors of each such corporation and shall thereafter be submitted to and approved by each such corporation by a vote of the stockholders holding a majority, or such greater percentage as is provided in its articles of incorporation, of each class of the corporation's outstanding stock entitled to vote thereon under the corporation's articles of incorporation at an annual or special meeting of stockholders called by the board of directors for the purpose of acting on the plan. Such consolidation or merger shall otherwise be in conformance with and enjoy the benefits of §§ 47-1A-1101 to 47-1A-1108, inclusive.
Source: SL 1986, ch 396, § 11; SL 2005, ch 202, § 11.
49-33-31. Articles of incorporation requiring greater vote control.
If, with respect to any action to be taken by the board of directors or by the stockholders of a corporation, the articles of incorporation require the vote or concurrence of the holders of a greater proportion of the shares, or of any class or series thereof, than required by any section of this title, the provision of the articles of incorporation requiring such greater vote shall not be altered, amended or repealed except by such greater vote.
Source: SL 1986, ch 396, § 12.
