299 Mass. 495 | Mass. | 1938
This is a petition for a writ of mandamus by eleven citizens of the Commonwealth. The case was heard by a single justice upon the petition, as amended, and special matter set up in the answer by way of demurrer. This special matter is that the petitioners set forth no case calling for relief, and that the petitioners allege no facts entitling them to the relief for which they pray. It was ordered that so much of the answer as is by way of demurrer be sustained, and the case was then reported for the consideration of the full court.
The allegations of the petition in substance are that the petitioners have associated themselves by a written agreement with the intention of forming a corporation under G. L. (Ter. Ed.) c. 156, and c. 175, §§ 48A and 49, and other pertinent sections, to be known as Aristos Mutual Liability Insurance Company, and that they have complied with every statutory requirement for the formation of such company as prescribed in G. L. (Ter. Ed.) c. 175 and statutes therein referred to. Pursuant to such compliance and in accordance with G. L. (Ter. Ed.) c. 175, § 49, and c. 156, § 11, the petitioners, on December 9, 1937, presented to the respondent the agreement of association, articles of organization, and the records and by-laws of the proposed company. Such records indicate that proper legal steps have been taken to form the proposed corporation. Such records have been examined by a deputy commissioner of insurance, counsel for the insurance department, and a designated agent of the respondent, and have been certified to the respondent as in accordance with the provisions and requirements of the General Laws. Since such submission of the records and by-laws, counsel for the petitioners has conferred frequently with the respondent, who, despite his verbal approval of the articles of organization, records and by-laws, has refused arbitrarily, unreasonably and unlawfully to certify and approve in writing said articles of organization and records of the corporation, and stated: “The incorporators are dummies who are not financially responsible and my approval of this corporation would be contrary to public policy.” Such approval is necessary under the law
The allegations of the petition that the petitioners have complied with every statutory requirement for the formation of such a corporation are too general and not adequately specific, and in the end are mere conclusions of law not admitted by the demurrer. Essential steps for the formation of a corporation such as is proposed are required by the statutes. The petition should set forth in detail those with which there has been compliance, so that there may be supporting facts beyond the bald allegations. Shuman v. Gilbert, 229 Mass. 225, 230. Newton Rubber Works v. Graham, 171 Mass. 352. Marsch v. Southern New England Railroad, 230 Mass. 483, 490, 494. Aisenberg v. Royal Ins. Co. Ltd. 266 Mass. 543. Fleming v. Dane, 298 Mass. 216, 218. Hopper v. Covington, 118 U. S. 148. Isbrandtsen-Moller Co. Inc. v. United States, 300 U. S. 139.
There are numerous expletives and epithets used to characterize the conduct of the respondent. No facts are set forth to support the employment of such terms. These add nothing to the substantive allegations of the petition. Butler v. Directors of the Port of Boston, 222 Mass. 5, 8. Boston v. Treasurer & Receiver General, 237 Mass. 403, 415. Cosmopolitan Trust Co. v. S. L. Agoos Tanning Co. 245 Mass. 69, 73. Club Aluminum Co. v. Young, 263 Mass. 223, 227. Brest v. Commissioner of Insurance, 270 Mass. 7, 12.
In accordance with the terms of the report agreed to by the parties, the
Petition is dismissed.