People ex rel. Blossom v. Nelson , 60 Barb. 159 ( 1871 )

Learned, J.

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 the incorporation of benevolent, charitable,, scientific, and missionary societies,” passed April 12, 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 8, 1871. The principal office of the society is in the city of New 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 14, 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 Mr. 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 on this motion :

1. Is the consent and approbation of a justice, which is 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 ?

2. 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 were one authorized by the statute. Indeed, if the consent 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 had 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. Nor 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 Mr. 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 co-operation 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 a respectable insurance company insurances on their lives, and in maintaining the necessary payments on the same, and 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 be 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 on 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 the highest degree praiseworthy and desirable. Banks and insurance companies are useful institutions, but they are not benevolent. And so I think that an association, the object 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 an act passed in 1871 (ch. 91), and points out that these two special acts seem to provide, substantially, for similar purposes with 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.

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 ten dollars costs of motion, to be paid by the relators.