Attorney Gen. v. Hill-Davis Co.

• Decision Date: 06 December 1932
• Docket Number: No. 62.,62.
• Citation: 261 Mich. 89,245 N.W. 579
• Parties: ATTORNEY GENERAL v. HILL-DAVIS CO., Limited.
• Court: Michigan Supreme Court

261 Mich. 89

245 N.W. 579

ATTORNEY GENERAL

v.HILL-DAVIS CO., Limited.

No. 62.

Supreme Court of Michigan.

Dec. 6, 1932.

Information in the nature of quo warranto by the Attorney General in and for the State of Michigan, against Hill-Davis Company, Limited.

Writ of quo warranto dismissed.

Argued before the Entire Bench.Paul W. Voorhies, Atty. Gen., and Wendell Brown, Asst. Atty. Gen., for plaintiff.

Norris, McPherson, Harrington & Waer, of Grand Rapids, for defendant.

POTTER, J.

Information in the nature of quo warranto by the Attorney General to forfeit the charter of the Hill-Davis Company, Limited, a partnership association, for failure to appoint an agent in this state, and pay a fee of $2 therefor, as prescribed by Act No. 327, Pub. Acts 1931, to the secretary of state. Defendant denies the state's right to a judgment of ouster.

1. Section 191 of Act No. 327, Public Acts 1931, purports to repeal ‘Act one hundred ninety-one, public acts eighteen hundred seventy- seven; act two hundred sixteen, public acts eighteen hundred eighty-one; act twenty-one, public acts eighteen hundred eighty-five; act two hundred forty-four, public acts nineteen hundred three; act sixty-three, public acts nineteen hundred five; act one hundred eighty-eight, public acts nineteen hundred five; act forty-five, public acts nineteen hundred nine; act two hundred fifty-two, public acts nineteen hundred eleven; act one hundred five, public acts nineteen hundred nineteen; act twenty-five, public acts nineteen hundred twenty-five.’ All the statutes thus attempted to be repealed govern partnership associations, provided to be organized by sections 9909, 9925, Comp. Laws 1929. If section 190, Pub. Acts 1931, is valid and repeals the statutes above enumerated, the Hill-Davis Company, Limited, has ceased to exist, People v. Calder, 153 Mich. 724, 117 N. W. 314,126 Am. St. Rep. 550, and plaintiff is not entitled to judgment of ouster against it.

2. The people claim Act No. 327, Pub. Acts 1931, is valid and applies to the Hill-Davis Company, a partnership association, organized as above indicated.

Section 2 of article 12 of the Constitution provides: ‘The term ‘corporation’ as used in this article shall be construed to include all associations and joint stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships.'

This express enumeration in the Constitution of the purposes for which partnership associations are declared to be corporations is an implied exclusion of their being corporations for other purposes.

‘Certain provisions of the Constitution are made applicable to ‘all associations and joint stock companies, having any of the powers or privileges of corporations, not possessed by individuals or partnerships.’ * * * But it does not follow that the term ‘corporation,’ as thereafter used in legislation, must in every instance be so comprehensively construed. Had the Constitution makers so intended, they could easily have said so, and the fact that the provision was limited to the term as used in the preceding sections indicates a contrary intention.' Attorney General v. McVichie, 138 Mich. 387, 101 N. W. 552, 553.

Partnership associations are not declared to be corporations by the statute providing for their creation. They have been declared not to be corporations except for the purposes expressly enumerated in the Constitution.

(a) By the state court. Attorney General v. McVichie, 138 Mich. 387, 101 N. W. 552;Whitney Realty Co. v. Secretary of State, 220 Mich. 234, 189 N. W. 1007;Michigan Trust Co. v. Herpolsheimer, 256 Mich. 596, 240 N. W. 6.

(b) By the federal court of the Sixth circuit. Fred Macey Co., Ltd., v. Macey (C. C. A.) 135 F. 725 (opinion by Mr. Justice Lurton).

(c) The original partnership association act of Michigan was substantially a reprint of the Pennsylvania act of 1874. Rouse, Hazard & Co. v. Donovan, Wayne Circuit Judge, 104 Mich. 234, 62 N. W. 359,27 L. R. A. 577, 53 Am. St. Rep. 457. Purdon's Pennsylvania Statutes, Ann., title 59, chapter 3 (section 341 et seq.).

‘There has never been any decision of the state of Michigan which determines that these associations are corporations. Indeed, the Michigan cases do not even characterize them as ‘quasi corporations,’ as did the Pennsylvania courts. We see no ground upon which we can reasonably distinguish this association from those under view in the case of Great Southern Fireproof Hotel Co. v. Jones [177 U. S. 449, 20 S. Ct. 690, 44 L. Ed. 842], so often...