166 N.W. 545 | S.D. | 1918
Application far peremptory writ of mandamus to compel the -commissioner of insurance to renew the certificate of authority of -the plaintiff to do- business in South Dakota as a fraternal insurance organization for the year ending February 28, 19x9.
By his return .to the order to show cause, the commissioner
“(3) To create funds in aid of the members during sickness or other disability, and for the erection of homes for the widows and orphans of its members or for such other purposes as the Superior Lodge may determine, and generally to care for the living and bury the dead.
“(4) To pledge the members to the payment of a stipulated sum to such beneficiary as a deceased member may have designated while living, under such restrictions and upon conditions as the laws of the order may prescribe. The Superior Lodge, Degree of Honor, shall be composed of officers and representatives as follows:”
“Every corporation or association organized * * * shall, * * * comply wlith the provisions of tihiis article.”
But section 738, C. C., also says:
“Fraternal, benevolent and secret societies * * ~ organized or operated for the purpose of paying death benefits * * * must comply with the provisions of this article.”
Manifestly as to the domestic incorporations mentioned in the latter section article 18 is merely regulatory. He next contends that section 707, C. C., does not specify what the articles of incorporation, shall contain. In the absence of specific provision therefor, -in article 18, the general requirements of section 408, C. C., would obtain.
“Tibe secretary of state shall have a general supervision of the incorporation of all private corporations organized under the laws of this state, except insurance companies.”
After the enactment ictf that section, which first appeared • as .a part of chapter 105, Laws 1891, and until the enactment of chapter 268, Laws 1917, the secretary of state had no authority to pass upon the articles of incorporation of insurance 'Companies, except in the case of insurance corporation's organized under chapter 125 of the laws 1905, and possibly other statutes. The determination of the methods by which corporations, may be form eld! is unquestionably a mlaltter of legisfeitivie policy. The his.tory of incorporation legislation in South Dakota and in the terrtitory of Dakota shows a great variety of methods of incorporation and an entire feck of uniformity in the designation of the officer with whom the articles of incorporation should be lodged. We are of 'the opinion that sections 707 and 708, C. C., relate to the matter of incorporation. They contain provisions inconsistent wl'tlb tire idea that they aire merely regulatory. Sections 708 and 709, C. C., contain the words “organized under this act.” Sections 712 and 713, C. C., contain the words, “organized or operating under this article.” If organized under article 18, they could only be organized under the provisions of sections 707 and 708, C. C. We are therefore of the opinion that -the word “organized” is -there used synonymously with the word “incorporated.”
“That it appears from the articles of incorporation submitted that one of the purposes of the incorporation is the payment of death benefits, and under the provisions of section 52, and of section 3 of chapter 51, Laws of 1890, it is the opinion of this office that said corporation belongs under the insurance department of the state, and -that these articles should be filed with the auditor of the state, and not in your office.”
Assistant Attorney General' Taylor said (A. G. Op. 1900, P- 175):
“Chapter 51 of the Session Laws of 1890 provides for the incorporation and regulation of life insurance companies.”
No’ other reason being assigned by defendant for his refusal to renew plaintiff's certificate of authority, we are elf the opinion that the writ prayed for should issue.