People ex rel. Blossom v. Nelson — 60 Barb. 159

Majority

p. 159

The People, ex rel. Josiah B. Blossom and others, vs. Homer A. Nelson.

Headnote

The consent and approbation of a justice of the Supreme Court required by the act of April 12, 1848, “ for the incorporation of benevolent, charitable, &c., societies,” to the certificate of organization of a society under that act, although necessary, like the acknowledgement before a commissioner, is not conclusive upon the Secretary of State, nor upon the court, upon the question whether the association, as its objects are stated in the certificate, is within the authority and meaning of the statute.

An association formed under- that act, to provide a “relief fund,” and “ to aid persons of moderate pecuniary resources in obtaining from a respectable insurance company insurance on their lives, and in maintaining the necessary payments on the same, and to secure to families so insured an immediate advance of funds in case of death,” is not within the meaning of the statute; the object of such association being the loaning of money.

MOTION by the relators for a mandamus to compel the defendant, who was Secretary of State, to file in his office a certificate of organization of a society made under the act of 1848. (Laws o/1848, ch. 319.)

Wm. P. Prentice and J. H. Reynolds, for the relators.

A. J. Parker, for the defendant.

This is a motion for a mandamus, to compel the Secretary of State to file a certain certificate of organization, made under the act, entitled “ An act for

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the incorporation of benevolent, charitable, scientific and missionary societies,” passed April 12th, 1848, being chapter 319 of the session laws of that year. The certificate is signed by eight persons, and was acknowledged by them on April 8th, 1871. The principal office of the society is in the city of Sew York. And there is attached to the certificate the following: “ I consent, to and approve of the filing of the within certificate,” which is signed by one of the justices of the Supreme Court of the first judicial district. The certificate was presented to the Secretary of State on April 14th, 1871, and he refused to file it in his office. A certificate of the same association had been previously presented to the Secretary of State for filing, and on his refusal, a motion for a mandamus to compel him to file it, had been made at the March special term. This motion- had been denied by Mr. Justice Ingalls, and the present certificate is modified so as to meet the objection stated by Justice Ingalls. There are still other objections, as the Secretary of State believes, which are not obviated in the new certificate. ■ There are two important questions which arise upon this motion:

1st. Is the consent and approbation of a justice, which i's indorsed on the certificate, conclusive upon the Secretary of State, and on this court, upon the question whether the association, as its objects are stated in the certificate, is within the authority and meaning of the statute ?

2d. If not, then is the association within that authority and meaning.

1. It was insisted by the relators, that the Secretary of State could not review the decision of the justice who signed the consent, and that the Secretary’s duties were simply ministerial and subordinate. If this were so, perhaps it would follow that this court, also, must be bound by the action of the justice,-and could not examine, either in this proceeding, or otherwise, whether the certificate was one authorized by the statute. Indeed, if the consent

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of the justice to the filing of the certificate is to be considered a decision of a matter submitted to him by the statute, then it might be doubtful whether a writ of quo warranto would lie against an association which hád obtained a justice’s approval, notwithstanding its expressed objects might be entirely beyond the provisions of the statute. Or, in other words, if, as the relators, insist, the consent and approbation of the justice are conclusive on the Secretary of State, such conclusiveness must be upon the ground that the statute has submitted the matter to his decision. And it would seem to follow from this that no other tribunal could review the action of the justice. So that a bank might be organized under the statute, if the ex parte consent and approbation of a’justice could be obtained.

I cannot think that any such sweeping force is to be given to the act of the justice. Xor does the language of the statute warrant that construction. Section 1 authorizes five or more persons to- make, sign, acknowledge and file a certain certificate; and it adds that the certificate shall not be filed unless by the written consent and approbation of a justice. The approval of the justice, like the acknowledgment before a commissioner, is necessary to the certificate, but it is not conclusive on the question whether it is conformable to the statute.

I am strengthened in this view by the decision of Justice Ingalls, above mentioned; for, in denying the motion for a mandamus, he must have held that the Secretary of State was not concluded by the consent and approval indorsed on the certificate.

2. The certificate states that the object of the society is “ benevolent, by the association and cooperation of its members, by their contributions, and the contributions of others, to provide a relief fund; also, to aid persons of moderate pecuniary resources in obtaining from respectable insurance companies insurance on' their lives, and in maintaining the necessary payments on the same, and

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to secure to families of persons so insured an immediate advance of funds in case of death.” As far as I can understand from this language, by the plan of the society the corporators contemplate, principally, the lending of money. They propose to establish a “ relief fund but it does.not appear that any one is to he relieved by it. To name the money contributed by the members and others a relief fund,” does not in the least show that it is to be used for a benevolent purpose. The use to be made of it is not, so far at least as stated, any more than it would have been if the word “relief” had been omitted.

The next object is to aid persons in obtaining insurances on their lives. The aid to be thus rendered cannot be in the seeking out life insurance agents; they are too easily found. It must be the advancing money to pay premiums ; in other words, lending money for a specific purpose. And' this, too, must be the meaning of aiding to the necessary payments. Plainly, also, the advance of funds . to the families in case of death, is but a lending of money upon the security of the policy. This is as much a matter of business as is the lending on any other security. It seems to me evident, therefore, that the object of this society is the lending of money. And if this be so, the fact that the borrowers are expected to make a good use of the money, by. applying it to the 'payment of premiums on life insurance, cannot alter'the nature of the transaction. It is true that a great deal of good may be done by lending money—perhaps even more than by giving it away. Still I do. not think that associations for lending money, however excellent the motives of the association may be, are within the meaning of this statute. In saying this, I do not mean to cast any imputation on the objects of this association. They may be in thé-highest degree praiseworthy and desirable. Banks and insurance companies aré useful institutions, but they are nor benevolent. And so I think that an association, the ob

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ject of which is to aid its members by loans or advances of money, cannot be strictly called benevolent or charitable. The Secretary of State refers to an act passed in 1870, (ch. 169,) and to the act passed in 1871, (ch. 91,) and points out that these two special acts seem to provide, substantially, for similar purposes as those sought to be accomplished under this association. He urges, and with great weight, that these acts give a construction, by the legislature and by the executive, favorable to his position ; that is, that the purposes of this association cannot be attained under the general act of 1848.

[Albany Special Term,

April 25, 1871.

I have not examined the objections taken by the defendant’s counsel to some details of the certificate of association, having decided to deny the motion upon the grounds above mentioned.

Motion for mandamus denied, with $10 costs of motion, to be paid by the relators.

Learned, Justice.]