State ex rel. Henderson v. Lesueur

99 Mo. 552 | Mo. | 1889

Black, J.

The relators joined in articles of agreement for the purpose of being incorporated by the name of the “Lafayette Park Club,” under article 10 of chapter 42, Revised Statutes, 1889, which article consists of sections numbered from 2821 to 2835. On the petition of the relators the circuit court of the city of St. Louis made a pro forma decree declaring that the articles of agreement and the purposes of the association came within the purview of said article, and were not inconsistent with the constitution or laws of the United States or of this state. The decree was made pursuant to section 2822. The articles of agreement and the decree having been duly recorded in the office of the recorder of deeds, the relators presented the same to the secretary of state, and, without the payment or offer to pay the tax mentioned in section 21 of article .10 of the constitution, requested him to. file the same and make out and deliver to them a certified copy thereof, that being the final act which gives to the association a corporate existence. The secretary refused to file the articles and issue a certified copy, and hence this proceeding against him by mandamus.

The refusal of the secretary is put upon the ground that the proposed corporation is not one for benevolent, religious, scientific or educational purposes, and, therefore, not exempt from the payment of the tax; and on the further ground that this association could only be incorporated for the purposes designated in its charter under section 2834, and that that section is unconstitutional and void.

The object and purposes of the proposed corporation as set forth in the articles of agreement are as follows :

“The purposes and scope of said corporation shall be for the encouragement of debating, reading and literature, and the. enjoyment of rational and social amusements, and the playing of ten-pins, chess and checkers and other lawful games of the kind. But it is hereby expressly declared, that there shall be no saloon in connection with said club, and no drinks shall be sold by the said club or any of its members. It is further declared-that this association shall have no connection with any manufacturing, agricultural or business purposes of any kind, nor shall it have any connection with politics or a political organization. Nor shall it have in view any pecuniary profit of any kind, but it shall be limited to the general objects above set forth.”

Section 21 of article 10 of the constitution provides: “No corporation, company or association, other than those formed for benevolent, religious, scientific or educational purposes, shall be created or organized under the laws of this state, unless- the persons named as corporators shall, at or before the filing of the articles of association or incorporation, pay into the state treasury fifty dollars for the first fifty thousand.dollars or less of capital stock, and a further sum of five dollars for every additional ten thousand dollars of its capital stock,” etc.

Section 2821 of the Revised Statutes of 1889 provides in general terms that associations may be incorporated for “benevolent, religious, scientific, fraternal, beneficial and educational purposes; ’ ’ and section 2825 enters more into details, and after providing for the formation of corporations for benevolent and religious purposes provides: “Any school, college, institute, academy or other association formed for educational or scientific purposes, including therein any association formed especially to promote literature, history, science, information or skill among the learned professions, intellectual culture in any branch or department, * * * and in general any association, society, company or organization which tends to the public advantage, in relation to any or several of the objects above enumerated, and whatever is incident to such objects, may be created a body corporate and politic.”

In the view we take of this case it is unnecessary to recite other statutory provisions. Section 21 of article 10 of the constitution is plain. By it no association can be incorporated for any purpose other than for benevolent, religious, scientific and educational purposes, without the payment of the tax. This tax, it will be seen, is fixed at fifty dollars for the first fifty thousand dollars or less of capital stock, and at five dollars additional for every additional ten thousand dollars of stock. Now it is plain that the payment of the tax cannot be evaded by organizing a corporation under a law which, makes no provision for stock. It is equally clear that the legislature has no power to authorize the evasion of the payment by allowing corporations to be organized under this benevolent law, as it is called, without a capital stock. This court held in express terms in State ex rel. Richey v. McGrath, 95 Mo. 193, that the payment could not be avoided by reason of a legislative declaration that the corporation was one formed for benevolent purposes, when the law under which it was brought into existence showed that it was a money-making institution. To give effect to the constitution, corporations, not falling within one of the four classes, must be organized, if at all, under some law providing for capital stock. In so far, therefore, as section 2834 undertakes to allow corporations to be created for other than benevolent, religious, scientific or educational purposes, it is void.

The important question here, however, is whether the proposed corporation can be fairly said to be one for educational purposes. And it is to be observed, in the first place, that the constitution uses the words “for benevolent, religious, scientific and educational purposes,” in a broad and comprehensive sense. The corporations thus exempted from the payment of the tax are, to a certain extent, mentioned in contradistinction to such as are organized for pecuniary profit. As applied to minors it has been said, “education” comprehends not merely the instruction received at school or college, but the whole course of training, moral, intellectual and physical. Ruohs v. Backer, 6 Heisk. 395. The following definition appears to have been prepared with care :■ “Education is the bringing up, physically or mentally, of a child, or the preparation of a person, by some due course of training, for a professional or business life, or other calling.” 6 Am. & Eng. Ency. of L. 158.

. The object and purposes of the proposed corporation are: (1) The encouragement of debating, reading and literature ; (2) the enjoyment of rational social amusements ; (3) the playing of ten-pins, chess, checkers and other lawful games of the kind. The first of these declared purposes is clearly educational; and the others seem to be added as matters of amusement, and incidental to the first. That they are incidental is shown by the subsequent statements wherein it is expressly declared, that there shall be no saloon in connection with the club, that drinks shall not be sold by it, or any of its members, and that the association shall not have in viewr any pecuniary profit. Had the articles of association specified only the first of the designated objects, still the members of the association, under appropriate by-laws, might indulge in any of these amusements without violating the charter. Some degree of liberality must be allowed in the formation of those associations where all pecuniary profit is excluded. These articles of association can stand on sections 2821 and 2825 and it is our opinion that the proposed .association may be incorporated without the payment of the tax. A peremptory writ is therefore awarded.

All concur, except Ray, C. J., and Brace, J., who. dissent.