State ex rel. Henderson v. Lesueur

• Decision Date: 24 February 1890
• Citation: 13 S.W. 237,99 Mo. 552
• Parties: The State ex rel. Henderson et al., Petitioners, v. Lesueur, Secretary of State
• Court: Missouri Supreme Court

13 S.W. 237

99 Mo. 552

The State ex rel. Henderson et al., Petitioners, v. Lesueur, Secretary of State

Supreme Court of Missouri

February 24, 1890

Peremptory writ awarded.

Gibson Bond & Gibson for relators.

(1) The purposes of the Lafayette Park Club are of an educational nature, tending to promote literature and intellectual culture, and come directly within the provisions of the statute. R. S. 1889, secs. 2821-2, et seq. The state grants the right of incorporation where the association is designed to promote literature, and this is one of the declared objects of the club. (2) The court had the power to render a pro forma decree of incorporation based upon the provisions of section 2825, and hence had jurisdiction of the subject-matter. From these premises (jurisdiction of person and subject-matter), we believe it follows as a necessary legal deduction that the decree is invulnerable to collateral attack. Every presumption, as shown by repeated decisions of this court, is in favor of the correctness of the decree, and even mere error in the proceedings would not render it void. Castleman v. Relf, 50 Mo. 587; Huxley v Harrold, 62 Mo. 523; Gates v. Trusten, 89 Mo 18; Gray v. Bowles, 74 Mo. 424; Kane v. McCowen, 55 Mo. 181; Ellis v. Jones, 51 Mo. 186; Wilson v. Jackson, 10 Mo. 329; Brackett v. Brackett, 53 Mo. 265. (3) The questions whether the purposes of the club were educational or formed especially to promote literature, intellectual culture, etc., were questions of fact to be investigated and decided by the circuit court. The statute plainly imposes it as a duty upon the circuit court to investigate and determine upon the real purposes and design of a proposed association. and, with that end in view, clothes the circuit court with ample powers to ascertain the truth and the real facts. It imposes this duty upon the court if it entertains any doubt, and provides for the appointment of some competent attorney as a friend of the court to investigate the matter, who is empowered to take testimony for that purpose. If section 2834 be not unconstitutional, an association would be valid which had social amusements alone in view. But even if the court holds said section 2834 is unconstitutional, still there is nothing to show that the petitioners were incorporated under that section, and every presumption being in favor of the validity of the decree of the circuit court, this court must presume that the incorporation was under sections 2821 and 2825.

John M. Wood, Attorney General, for respondent.

(1) The "Lafayette Park Club," being, as appears from its articles of agreement, "a mere pleasure club," and not formed for benevolent, religious, scientific or educational purposes, the secretary of state cannot incorporate it until the tax imposed by section 21 of article 10 of the constitution is paid. (2) Sections 2821 and 2825, Revised Statutes, 1889, do not, as claimed by relators, authorize the incorporation of clubs of the character of the Lafayette Park Club. (3) Section 2834, under which relators evidently drew their articles of agreement, and which is the only section in said article 10 of the statutes authorizing the incorporation of pleasure clubs, is unconstitutional. In re St. Louis Institute of Christian Science, 27 Mo.App. 641; State v. Brawner, 15 Mo.App. 597; State ex rel. v. Benefit Association, 6 Mo.App. 163; State v. Merchants, etc., 72 Mo. 146; State v. McGrath, 95 Mo. 183. (4) The record of the proceedings in the circuit court, as recited in the petition, shows that the court did not have jurisdiction of the subject-matter, and that the pro forma decree is therefore void ab initio, and the secretary of state is not bound by its findings. If the proposed corporation is not authorized by said article, then the circuit court had no jurisdiction to render such decree, and its action is void, and respondent is not bound by it. It will doubtless be conceded that the question of the jurisdiction of the circuit court to render the pro forma decree must be determined from the contract itself, -- i. e., the articles of agreement filed with the petition, -- without the aid of extrinsic evidence. Cheatham v. Cheatham, 10 Mo. 296; Cole v. Cole, 3 Mo.App. 571; Pate v. Pate, 6 Mo.App. 49. Section 2834 is, as before stated, unconstitutional. The record of the circuit court affirmatively shows that the relators' incorporation is not authorized by sections 2821 and 2825, that the circuit court did not have jurisdiction of the subject-matter, and its decree is therefore void. Brown v. Woody, 64 Mo. 547; Railroad v. Reynolds, 89 Mo. 146; Werz v. Werz, 11 Mo.App. 26; Deeker v. Lidwell, 3 Mo.App. 586; McCoy v. Zane, 65 Mo. 11; Howard v. Thornton, 50 Mo. 291; Railroad v. Campbell, 62 Mo. 588. The secretary of state cannot, therefore, incorporate relators without the payment of the tax imposed by the constitution. (5) Notwithstanding the pro forma decree (conceding the jurisdiction of the court), respondent would not be authorized to incorporate relators without the payment of the tax, unless it appeared from the record presented to him that the proposed corporation came within the scope of the constitutional exemption, and that the requirements of said article 10 of the statutes had been complied with. State, etc., v. McGrath, 92 Mo. 357.

Black, J. Ray, C. J., and Brace, J., dissent.

OPINION

Mandamus.

Black J.

-- The relators joined in articles of agreement for the purpose of being incorporated by the name of the "Lafayette Park Club," under article 10 of chapter 42, Revised Statutes, 1889, which article consists of sections numbered from 2821 to 2835. On the petition of the relators the circuit court of the city of St. Louis made a pro forma decree declaring that the articles of agreement and the purposes of the association came within the purview of said article, and were not inconsistent with the constitution or laws of the United States or of this state. The decree was made pursuant to section 2822. The articles of agreement and the decree having been duly recorded in the office of the recorder of deeds, the relators presented the same to the secretary of state, and, without the payment or offer to pay the tax mentioned in section 21 of article 10 of the constitution, requested him to file the same and make out and deliver to them a certified copy thereof, that being the final act which gives to the association a corporate existence. The secretary refused to file the articles and issue a certified copy, and hence this proceeding against him by mandamus.

The refusal of the secretary is put upon the ground that the proposed corporation is not one for benevolent, religious, scientific or educational purposes, and, therefore, not exempt from the payment of the tax; and on the further ground that this association could only be incorporated for the purposes designated in its charter under section 2834, and that that section is unconstitutional and void.

The object and purposes of the proposed corporation as set forth in the articles of agreement are as follows:

"The purposes and scope of said corporation shall be for the encouragement of debating, reading and literature, and the enjoyment of rational and social amusements, and the playing of ten-pins chess and checkers and other lawful games of the kind. But it is hereby expressly declared, that there shall be no saloon in connection with said club, and no drinks shall be sold by the said club or any of...