Wesalo v. Commissioner of Ins.

• Decision Date: 28 February 1938
• Citation: 299 Mass. 495,13 N.E.2d 420
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SYLVAN P. WESALO & others v. COMMISSIONER OF INSURANCE.

299 Mass. 495

13 N.E.2d 420

SYLVAN P. WESALO & others v. COMMISSIONER OF INSURANCE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1938

January 5, 6, 1938.

Present: RUGG, C.

J., DONAHUE, QUA & COX, JJ.

Pleading, Civil Petition for mandamus, Demurrer. Mandamus.

In a petition for a writ of mandamus to compel the commissioner of insurance to give the approval required by G. L. (Ter. Ed.) c. 175 Section 49; c.

156, Section 11, in the formation of an insurance corporation, an allegation that the petitioners had complied with all statutory requirements respecting its formation, and the use of epithets and expletives to characterize the respondent's conduct, but without a statement of supporting facts, required that a demurrer be sustained.

PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Suffolk on December 14, 1937.

The respondent's demurrer was sustained by Dolan, J., who reported the case to the full court upon the agreement of the parties that, if the ruling was right, the petition should be dismissed; otherwise the writ should issue.

F. J. Roche, for the petitioners. J. J. Ronan, Assistant Attorney General, for the respondent.

RUGG, C.J. This is a petition for a writ of mandamus by eleven citizens of the Commonwealth. The case was heard by a single justice upon the petition, as amended, and special matter set up in the answer by way of demurrer. This special matter is that the petitioners set forth no case calling for relief, and that the petitioners allege no facts entitling them to the relief for which they pray. It was ordered that so much of the answer as is by way of demurrer be sustained, and the case was then reported for the consideration of the full court.

The allegations of the petition in substance are that the petitioners have associated themselves by a written agreement with the intention of forming a corporation under G. L. (Ter. Ed.) c 156, and c. 175, Sections 48A and 49, and other pertinent sections, to be known as Aristos Mutual Liability Insurance Company, and that they have complied with every statutory requirement for the formation of such company as prescribed in G. L. (Ter. Ed.) c. 175 and statutes therein referred to. Pursuant to such compliance and in accordance with G. L (Ter. Ed.) c. 175, Section 49, and c. 156, Section 11, the petitioners, on December 9, 1937, presented to the respondent the agreement of association, articles of organization, and the records and by-laws of the proposed company. Such records indicate that proper legal steps have been taken to form the proposed corporation. Such records have been examined by a deputy commissioner of insurance, counsel for the insurance department, and a designated agent of the respondent, and have been certified to the respondent as in accordance with the provisions and requirements of the General Laws. Since such submission of the records and by-laws, counsel for the petitioners has conferred frequently with the respondent, who, despite his verbal approval of the articles of organization, records and by-laws, has refused arbitrarily, unreasonably and unlawfully to certify and approve in writing said articles of organization and records of the corporation, and stated: "The incorporators are dummies who are not financially responsible and my approval of this corporation would be contrary to public policy." Such approval is necessary under the law before the Secretary of the Commonwealth can issue a charter to the proposed corporation. The respondent has improperly and unlawfully refused to indorse his approval on the articles of organization submitted to him for signature as required by G. L. (Ter. Ed.) c. 156, Section 11, and c. 175, Section 49. The purposes of incorporation of the proposed company, as set forth in exhibits attached to the petition, are contained entirely in subdivisions (a), (b), (c) and (d) of cl. Sixth of Section 47 of c. 175 of G. L. (Ter. Ed.). The proposed corporation would not be authorized to transact, and will not transact, the business described in cl. Sixteenth of Section 47 of c. 175, "or the sixteenth and sixth clauses thereof." The petitioners finally allege that, having complied with all requirements of the law, they are entitled to certification and approval by the respondent of said articles of organization and records of the proposed corporation, in order to file the same in the office of the Secretary of the Commonwealth, and, on...