Roman Catholic Orphan Asylum v. Abrams

49 Cal. 455 | Cal. | 1875

By the Court, McKinstry, J.:

The Act concerning corporations, (Stats. 1850, p. 273-4), authorizes all “moral, beneficial, literary or scientific associations,” by such methods as their rules or regulations may direct, to appoint or elect any number, not less than three nor more than nine, trustees to take charge of the estate and property belonging thereto, etc. And, in section 176, “upon the appointment or election of such trustees or directors, a certificate of such appointment shall be executed by the person or persons making the appointment, or the judges holding the election, stating the names of the trustees or directors. The name by which said trustees shall thereafter forever be called and known shall be particularly mentioned and specified.”

I. It is urged that the certificate given in evidence fails to comply with the statute, in that it does not appear therein that the nine persons whose names are subscribed to it constituted an existing society, with rules and regulations for the election or appointment of its officers, or that the trustees named had been chosen in accordance with such rules and regulations.

The statute does not require that the “rules or regulations” adopted by a society shall be set forth in the certificate, and I can hardly believe that a person other than the members can object that the rules were not complied with. If, however, this were permissible, there is no evidence in the present case of any departure from such rules.

The object of the provision of the statute is to require that the members of the society shall express their choice as to the persons to become trustees of the corporation, directly or through officers or agents selected by them in the method prescribed by their rules or regulations. Whatever doubt might arise in other cases, none can exist that the will of the society is expressed in the certificate, where —as in the present case—all the members sign the certificate. The statute does not require that the rules shall have been reduced to writing, or that they shall have existed for any particular period of time; and the rules, whatever they are, may be changed by the unanimous action of the members. It affirmatively appearing that no one of the members objected to the mode which was pursued in selecting the trustees, but on the contrary, that all united in that mode, it must be assumed that there were no “rules or regulations” in conflict with the method adopted.

II. I have examined the original of the statute of 1850 in the office of the Secretary of State, and find that in the printed volume, the word “names” has been substituted for the word “name,” in the clause last above quoted.

The object of that clause is to require that the certificate shall show the “name” by which the trustees (acting for the corporators,) shall be known, may acquire and dispose of property, sue and be sued. If this certificate had contained a statement, “the name by which the trustees of this society shall be known is the Roman Catholic Orphan Asylum,” no question could be made as to its sufficiency. I can see no substantial difference between this and the language, “the corporate name of our society is ‘The Roman Catholic Orphan Asylum.’” In each case the object of the statute is secured—a name is adopted, under which the trustees, acting for the society, may transact its business.

III. The statute does not require that the certificate shall contain a statement of the county in which the society is “situated.”

Judgment affirmed.