Carson v. Schulderman

Me. Justice McBride delivered the opinion of the court. 1. Section 6679, L. O. L., provides: “Whenever three or more persons shall desire to incorporate themselves for the purpose of engaging in any lawful enterprise, business, pursuit, or occupation, they may do so in the manner provided in this act. ’' Chapter 5, Title 44, L. O. L., provides for the incorporation of religious, literary, art, charitable and other societies not carried on for the purpose of profit. This chapter makes no provision for such associations issuing shares or having capital stock. We think there is no doubt of the right of the trustees to incorporate under the provisions of Section 6684. Under the will they could not incorporate in any other manner, and, if they could not do so under such section, the trust would possibly fail altogether. Building, maintaining and carrying on an institution of the character mentioned is a “lawful enterprise, a business, or pursuit,” irrespective of whether the parties incorporating engage in it for pleasure, profit or charity. In the present instance the design of the corporation is purely charitable and benevolent. Its scope and articles are such as absolutely inhibit the idea of profit from any source. It is true that the fact that the corporation is one having capital stock is laid down by many authorities as the test whether or not the corporation is one organized for profit, but after all it is only evidence of that fact, and cannot be conclusive in a case where the articles themselves show that the whole capital and income of the property is to be devoted to charitable uses. 2. Whether the Churches of Christ, Scientist, are qualified to take the reversion of the stock as provided [190] in the will is a question that does not arise here. If there are none in Portland so qualified, the courts will not allow the trust to fail for want of a trustee. 3. It is here stipulated, however, that the different Churches of Christ, Scientist, of Portland, Oregon, are religious bodies or associations organized and existing for the purpose of religious and educational work in said city; that the articles of incorporation of said Church of Christ, Scientist, do not show that said churches are charitable institutions or associations organized for charitable work; that the articles of incorporation of said churches show no legal affiliation with the Church of Christ, Scientist, incorporated under the laws of the State of Massachusetts and commonly known as the Mother Church of Boston, Massachusetts. We take it that by the reference to the Mother Church of Boston it was not intended that there should be any legal connection between the churches in Portland and the Mother Church, but that there should be such recognition by the Mother Church of the churches designated to take under the will as would render it impossible for some seceding or unorthodox organization not recognized by the Mother Church to claim an interest in the bequest. It is not necessary that such relation should appear in the articles of incorporation of the Portland churches if that fact is made to appear otherwise. We will not attempt in this proceeding to determine who shall take under the will, but merely whether the articles of incorporation show that the object of the incorporation is charitable, and not for profit. This is clearly shown, and, while it was entirely proper for the commissioner to require this matter to be determined by judicial proceedings, an order will be made requiring him to file the articles and issue [191] the certificate of incorporation upon payment to him of the $5 tendered. Writ Allowed. Mr. Justice Eakin took no part in the consideration of this case.