State ex inf. Williamson v. Black

• Decision Date: 11 December 1940
• Docket Number: 37268
• Parties: State of Missouri on the information of Carl E. Williamson, Relator, v. Charles R. Black, Herman Niswonger, W. E. Davis, Harry L. Velvick, Jewell N. Higginbotham, Ralph Shelton, Lloyd Russell, Richard Woodward, Leslie Russell, as individuals, and the Peoples' Consolidated Burial Association of Doniphan, a purported Corporation
• Court: Missouri Supreme Court

145 S.W.2d 406

347 Mo. 19

State of Missouri on the information of Carl E. Williamson, Relator, v. Charles R. Black, Herman Niswonger, W. E. Davis, Harry L. Velvick, Jewell N. Higginbotham, Ralph Shelton, Lloyd Russell, Richard Woodward, Leslie Russell, as individuals, and the Peoples' Consolidated Burial Association of Doniphan, a purported Corporation

No. 37268

Supreme Court of Missouri

December 11, 1940

Appeal from Ripley Circuit Court; Hon. Robert I. Cope Judge.

Reversed and remanded (with directions).

Carl E. Williamson for appellant.

(1) The Circuit Court of Jackson County, Missouri, had proper and legal jurisdiction to reincorporate the Peoples' Consolidated Burial Association in Jackson County. Laws 1931 p. 176; In re Henry County Mut. Burial Assn., 229 Mo.App. 300, 77 S.W.2d 124. (2) Section 5014, Revised Statutes 1929, is in conflict with Section 21, Article X of the Constitution of Missouri. State ex rel. Richey v McCrath, 95 Mo. 193, 8 S.W. 425; State ex rel. Henderson v. Lesueur, 99 Mo. 552, 13 S.W. 237; State v. Brawner, 15 Mo.App. 597; Art. 10, Chap. 32, R. S. 1929, sec. 5014. (3) The burial association by the nature of its business is doing a life insurance business and does not come within the classification of associations for benevolent, religious, scientific or educational purposes. State ex rel. Henderson v. Lesueur, 99 Mo. 552, 13 S.W. 237; State ex rel. Richey v. McCrath, 95 Mo. 193, 8 S.W. 425; State v. Brawner, 15 Mo.App. 597; State ex rel. Atty. Genl. v. Merchants Exchange Mut. Ben. Soc., 72 Mo. 146; State ex rel. Beach v. Citizens Benefit Assn., 6 Mo.App. 163; Rockhill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9; State v. Willett, 171 Ind. 296, 86 N.E. 68; State ex rel. Coleman v. Wichita Mut. Burial Co., 72 Kan. 179, 84 P. 757; State ex rel. Wachenheimer v. Toledo & Lucas Co. Burial Assn., 28 Ohio Cir. Ct. 397; Young Men's Protestant Temperance & Benev. Soc. v. Fall River, 160 Mass. 409, 36 N.E. 57; Renschler v. State, 90 Ohio St. 363, 107 N.E. 758; Okla. S.W. Burial Assn. v. State ex rel. Read, 135 Okla. 151, 274 P. 642; Benevolent Burial Assn., Inc., v. Harrison, 181 Ga. 230, 181 S.E. 829; State ex rel. Fishback Ins. Commr., v. Globe Casket & Undertaking Co., 82 Wash. 124, 143 P. 878; State ex rel. Atty. Genl. v. Mut. Mortuary Assn., Inc., 166 Tenn. 260, 61 S.W.2d 664; Fikes v. State, 87 Miss. 251, 39 So. 783; Smith v. Bullard, 61 N.H. 381; Sisson ex rel. v. Prata Undertaking Co., 141 A. 76; State ex rel. Landis v. Jones Co., 108 Fla. 613, 147 So. 230; Ruto v. Italian Burial Casket Co., 104 Pa.Super. 288, 158 A. 657; Bedell v. Bair Co., Inc., 104 Pa. Sup. Ct., 146; 158 A. 651; State ex rel. Henderson v. Lesueur, 99 Mo. 552, 13 S.W. 237; Sec. 21, Art. X, Mo. Const.

C. T. Bloodworth for respondents.

The Circuit Court of Jackson County, Missouri, had no power or jurisdiction to render the decree set out on page 24 of the printed abstract herein, amending the Articles of Association of the Peoples' Consolidated Burial Association of Doniphan, Ripley County, Missouri, by changing its name to Jackson County Burial Association and removing it to Independence in Jackson County. Secs. 4997, 5000, Chap. 32, R. S. 1929.

Robert J. Callahan amicus curiae.

(1) Section 5014, Revised Statutes 1929, is in conflict with Section 21, Article X, Article IV, Section 52, paragraph 33, Article XII, Section 2, and Section 7 of the Constitution of Missouri. State ex rel. Inter-Ins. Auxiliary Co. v. Revelle, 165 S.W. 1084; Henderson v. Koenig, 168 Mo. 371, 68 S.W. 72, 57 L. R. A. 659; State ex inf. v. Ins. Co., 150 Mo. 135, 51 S.W. 413; In re Fluckes, 157 Mo. 132, 57 S.W. 545, 51 L. R. A. 176, 80 Am. St. Rep. 619; State ex rel. Richey v. McGrath, 95 Mo 193, 8 S.W. 425; State ex rel. Henderson v. Lesueur, 99 Mo. 552, 13 S.W. 237, 7 L. R. A. 734; State v. Brawner, 15 Mo.App. 597; State ex rel. Jones v. Brown, 92 S.W.2d 722; State v. Stone, 24 S.W. 164; Sec 21, Art. X, Mo. Const. (2) Corporations organized under Article X, Chapter 32, Revised Statutes 1929, Section 5014, are furnishing funeral or burial benefits to individuals on the payment of premium or dues. Said premium or dues shall increase at the same as, or a greater rate than, premiums are increased from ten years to fifty years. Such association, by the very nature of said statute, permits said corporation to engage in the life insurance business, and does not come within the classification of associations for benevolent, religious, scientific or educational purposes, as provided for by Article X, Chapter 32, Revised Statutes 1929, and a declaration by the Legislature to the effect that an association is a benevolent institution or association does not make it so. In re Henry County Mut. Burial Assn., 229 Mo.App. 300, 77 S.W.2d 124; State ex rel. Richey v. McGrath, 95 Mo. 193, 8 S.W. 425; State ex rel. Beach v. Citizens Benefit Assn., 6 Mo.App. 163; Rockhill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9; State ex rel. Coleman v. Wichita Mut. Burial Co., 73 Kan. 179, 84 P. 757; State ex rel. Atty. Genl. v. Merchant Exchange Mut. Ben. Soc., 72 Mo. 146; Young Men's Protestant Temperance & Benevolent Society v. Fall River, 160 Mass. 409, 36 N.E. 57; Okla. S.W. Burial Assn. v. State ex rel. Read, 135 Okla. 151, 274 P. 642; Benevolent Burial Assn., Inc., v. Harrison, 181 Ga. 230, 181 S.W. 829; State ex rel. Henderson v. Lesueur, 99 Mo. 552, 13 S.W. 237; State v. Brawner, 15 Mo.App. 597; State v. Willett, 171 Ind. 296, 86 N.E. 68; State ex rel. Wachenheimer v. Toledo & Lucas Co. Burial Assn., 28 Ohio Cir. Ct. 397; Renschler v. State, 90 Ohio St. 363, 107 N.E. 758; State ex rel. Fishback v. Globe Casket & Undertaking Co., 82 Wash. 124, 143 P. 878; State ex rel. Atty. Genl. v. Mut. Mortuary Assn., 166 Tenn. 260, 61 S.W.2d 664; Fikes v. State, 87 Miss. 251, 39 So. 783; Smith v. Bullard, 61 N.H. 381; Sisson ex rel. v. Prata Undertaking Co., 141 A. 76; State ex rel. Landis v. Jones Co., 108 Fla. 613, 147 So. 230; Ruto v. Italian Burial Casket Co., 104 Pa.Super. 288, 158 A. 657; Bedell v. Bair Co., 104 Pa. S.Ct. 146, 158 A. 651.

OPINION

PER CURIAM

This is an information in the nature of quo warranto seeking forfeiture of the corporate charter and dissolution of the Peoples Consolidated Burial Association. Judgment was entered discharging respondents and relator has appealed.

The Burial Association was incorporated, by pro forma decree in circuit court, under Section 5014, R. S. 1929 (3 Mo. Stat. Ann. 2301), as "an association for benevolent, scientific, fraternal and beneficial purposes." It is relator's contention both that Section 5014 is unconstitutional and void because it is in conflict with Section 21, of Article 10, of our Constitution; and that the Burial Association has misued its franchise by conducting a business which is in fact life insurance, and "does not come within the classification of associations for benevolent, religious, scientific or educational purposes." Because of the view we take, it is unnecessary to mention other contentions.

Section 21, Article 10, Constitution, provides: "No corporation, county or association, other than those formed for benevolent, religious, scientific or educational purposes, shall be created or organized under the laws of this State, unless" the taxes therein provided are paid. This court has held "that the Legislature has no power to authorize the evasion of the payment by allowing corporations to be organized under this benevolent law;" that "the payment could not be avoided by reason of a legislative declaration that the corporation was one formed for benevolent purposes, when the law under which it was brought into existence showed that it was a money-making institution;" and that "corporations not falling within one of the four classes (benevolent, religious, scientific or educational) must be organized, if at all, under some law providing for capital stock." [State ex rel. Henderson v. Lesueur, 99 Mo. 552, 13 S.W. 237; State ex rel. Richey v. McGrath, 95 Mo. 193, 8 S.W. 425.] We have also held that "it is a judicial question," whether or not a corporation is "former for either benevolent, religious, scientific, or educational purposes;" that "if, in point of fact, the corporation authorized by the act (involved) is not a corporation for benevolent purposes, the declaration of the Legislature that it is a benevolent corporation does not make it so;" and that it is "the province of the State to call in question the right to exercise the powers of a corporation or to challenge and oust a corporation from its right to exist and function as such." [Rockhill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9; See, also, Prairie Slough Fishing & Hunting Club v. Kessler, 252 Mo. 424, 159 S.W. 1080; State ex inf. Hadley v. Meramec Rod & Gun Club, 121 Mo.App. 364, 98 S.W. 815; State ex inf. Wear v. Business Men's Club, 178 Mo.App. 548, 163 S.W. 901; In re Henry County Mutual Burial Assn., 229 Mo.App. 300, 77 S.W.2d 124.] Therefore, the first question is whether burial associations, authorized by Section 5014 to be incorporated under the classification of benevolent, religious, scientific or educational corporations are in fact corporations of such character or whether they actually are business corporations.

Section 5014, and also Sections 5015-5019, R. S. 1929, were enacted in 1917 (Laws 1917, p. 228) by an act entitled: "An Act to provide for the incorporation and regulation of burial insurance associations, exempting the same from the provisions of Chapter 61, Revised Statutes of Missouri (Chapter 37, R. S. 1929) and amendments thereto, and fixing penalties for its violations." (Our italics.) The first sentence, of Section 1 of the Act (now Sec. 5014), then read "Associations may be incorporated under the...