Dobson v. Secretary of State

The petition for writ of mandamus should not be granted because: "Since the writ is employed to promote principles of justice, it should not issue to compel a technical *Page 203 compliance with the letter of the law, in violation of its clear intent or spirit, nor to wrest a statute from its true purpose." 38 C. J. p. 586. The purpose of the statute was to provide for the incorporation of responsible trust companies with adequate capital actually paid in and with authority to transact a lawful business. The issue goes beyond the order of steps in the organization of such a company and validity of State departmental practice. Plaintiffs are here seeking to establish judicially the status of corporate entity for their company as of the time of presentation of their articles to the secretary of State, with all the advantages of the statute under which they acted, even though it since has been repealed. The record does not inform us whether, before the act was repealed, plaintiffs fulfilled all the statutory requirements to commence business by paying in the required amount of capital, filing affidavit, and applying to the banking commissioner for a certificate. If they did, they should have alleged it in their petition. If they did not, then the granting of this writ would result in establishing a corporation which is without right to transact a lawful business, but is given an opportunity to operate in violation of law, casting upon the State the burden of discovering the breach and instituting proceedings to forfeit the charter. Regardless of the technical question of the right of the secretary of State to refuse filing of plaintiffs' articles before they obtained certificate of the banking commissioner to commence business, the discretionary writ of mandamus should not be issued to aid a company not shown to have taken all the statutory measures to entitle it to transact a lawful business and to put it in a position where it may do an unlawful business. *Page 204 If the writ were issued, the question would still outstand, whether plaintiffs can now pay in the required capital and demand a certificate under the repealed law or whether they must conform to the repealing statute. The latter, Act No. 67, Pub. Acts 1929, provides different procedure and different exercise of power by the banking commissioner in connection with the formation of trust companies. Until plaintiffs shall have shown performance of all the conditions of one law or the other and been refused a certificate of effective incorporation there is no occasion for action by this court. Writ is denied, without costs. BUTZEL, CLARK, POTTER, SHARPE, and NORTH, JJ., concurred with FEAD, J. McDONALD, J., took no part in this decision.