State ex rel. Richey v. McGrath

95 Mo. 193 | Mo. | 1888

Norton, C. J.

This is a proceeding by mandamus in which the relators seek to compel the defendant, as secretary of state, to file and record in his office certain articles of association or agreement made by relators and presented by them to defendant, and to issue a certificate of incorporation based thereon. The secretary of state refused to file the articles and issue a certificate of incorporation on the ground that he was not authorized to do so until the relators paid into the state treasury the sums required to be paid by article 10, section 21, of the constitution, and Revised Statutes, section 708.

The said section of the constitution is as follows : “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 corpora-tors 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.” - Section, 708, Revised Statutes, directs how such payments shall be made, and what shall be evidence of it to' the secretary of state.

The relators claim that, by virtue of section 12, Acts 1887, page 114, under which they seek to organize and become incorporated, they are exempted from the payment of the sums required to be paid by the constitution and statute above referred to. Said section 12 is as follows : “As building associations are. only aggregations of laborers, mechanics, workingmen, and working women, which start without any paid-up capital, and as their members only pay each month an assessment, in proportion to shares, for the purpose of furnishing a home to each of its members in turn, which assessments stop the moment that every member has thus been furnished with such a home, they are really benevolent associations as mentioned in article 10, section 21, of the state constitution, and shall, consequently, be exempt from the payment of the incorporation fee (tax) mentioned in said article 10, section 21.”

It may be said of the said act of 1887' that, with the exception of the said section 12, it is almost a literal copy of article 9, of Revised Statutes, page 175, devoted to mutual saving fund, loan and building associations» and with said exception, it is, in all its essential features, bnt a reenactment of said article 9, of the Revised Statutes. The necessity or reason for its reenactment is not apparent unless it was to get such a legislative declaration as is contained in said section 12, of which declaration it may be said that if, in point of fact, the incorporation authorized by the act is not a corporation for benevolent purposes, the declaration of the legislature that it is a benevolent corporation does not make it so, any more than a legislative declaration that a horse is a cow would alter the fact and convert the horse into a cow. Such legislative legerdemain is to be condemned, not approved.

The nature or character of corporations authorized to be created by the act of 1887 is to be determined from the purpose to be accomplished and the business they are authorized to engage in. It is stated in the relators’ articles of association that the capital stock of the company is one million dollars, divided into ten thousand shares at the par value of one hundred dollars each; that one hundred shares have been subscribed, and that the first payment has been made thereon ; that the object of the association is to enable the members, or those who may become such, to accumulate, by small monthly contributions from their savings, a fund out of which they can secure homes for themselves and families.

It is provided by section 4 of said act of 1887 as follows : “Every such corporation shall only lend its funds on real-estate security, or on the security on its own shares of stock, such loans being made upon the terms and conditions and in the manner which shall be specified in its by-laws. No loans shall be made on shares of stock to an amount exceeding the installments actually paid on such shares. Such corporation may, however, employ a portion of its capital stock in the purchase of real estate and the erection of buildings thereon for rent or. otherwise. If at any time it shall happen that there is no demand by the shareholders for the funds of such corporation, then such funds may be loaned to others who are not shareholders at such rate of interest as the directors may fix. No loans shall be made to members or others on personal security or on leasehold.” It is also provided in section 7 that “no premiums, fines or interest on such premiums that may accrue to said corporation, according to the provisions of this article, shall be deemed usurious, and the same may be collected as debts of like amount are now collected by law.”

It is clear, we think, from the sections above quoted as well as from the articles of association, that the leading purpose of this corporation is not to promote benevolence or charity, but to better the pecuniary condition of its members or shareholders alone, and we are unable to see how the fact that such an association may tend to promote frugality and economy, and open up a way “whereby the shareholders, out of their savings, may be enabled to' secure houses, or loan their savings to others at high rates of interest, to be fixed by the directors,” can be said to impress or characterize the association as one -formed for benevolent purposes, when the chief incentive to each stockholder is that he may benefit himself.

A peremptory writ is denied and the proceeding dismissed.

All concur.