Powell v. Dawson

• Decision Date: 19 January 1899
• Court: West Virginia Supreme Court
• Parties: POWELL et al. v. DAWSON, Secretary of State.

32 S.E. 214
(45 W.Va. 780)

POWELL et al.
v.
DAWSON, Secretary of State.

Supreme Court of Appeals of West Virginia.

Jan. 19, 1899.

Mandamus to Secretary of StatE — Incorporation of Church. 1. The secretary of state will not be compelled by mandamus to issue a charter of incorporation to several persons who agree to become a corporation by the name of the "Baptist Missionary Society of West Virginia, " for the purpose of promoting religion by aiding in the support of Baptist ministers engaged in preaching the gospel, and by aiding in the erection of houses of

[32 S.E. 215]

worship on missionary fields in West Virginia, and by collecting and disbursing funds for these

purposes.

2. Granting a certificate of incorporation upon the presentation of such an agreement would, in effect, be incorporating the church the parties represent, and contrary to the provisions of the constitution and statute.

(Syllabus by the Court.)

Application by W. E. Powell and others for a writ of mandamus against W. M. O. Dawson, secretary of state. Writ denied.

Dave D. Johnson and Merrick & Smith, for petitioners.

Edgar P. Kucker, Atty. Gen., for respondent.

ENGLISH, J. On the 13th day of January, 1898, W. E. Powell and six others entered into a written agreement in the form prescribed by section 32 of chapter 54 of the Code, for the purpose of forming a corporation by the name of the "Baptist Missionary Society of West Virginia, " for promoting religion by aiding in the support of Baptist ministers engaged in preaching the gospel, and by aiding in the erection of houses of worship on missionary fields in this state, and by collecting and disbursing funds for these purposes, which corporation was to keep its principal office at Parkersburg, W. Va., in the county of Wood, and the same was to expire on January 1, 1940, which agreement set forth the amount subscribed to be $450, and that $45 had been paid in, and stated that the subscribers desired the privilege of increasing the capital, by the sale of additional shares from time to time, to $50,-000 in all, the shares to be $50. This agreement was properly signed, sworn to, and acknowledged, and filed in the office of W. M. O. Dawson, secretary of state, on January 20, 1898. On the 28th of January, 1898, said secretary of state refused to issue the charter applied for, stating that he was advised by the attorney general that It would be illegal to issue a charter on said agreement. On February 8, 1898, said W. E. Powell and six others presented their petition to this court, verified by affidavit, together with exhibits, praying for a writ of mandamus to be directed to the Honorable W. M. O. Dawson, secretary of state for West Virginia, to require and compel him to issue to said petitioners a certificate of incorporation declaring them to be a corporation in the name of the "Baptist Missionary Society of West Virginia"; and it appearing to the court that the petitioners had on January 20, 1898, filed with said secretary of state the agreement above mentioned, and had requested him to issue to them a certificate of incorporation as therein set forth, which he had refused to do, a mandamus was awarded, to which said...