State ex rel. Security Savings & Loan Ass'n v. Brodigan

By the Court, Sanders, J.: This is a hearing upon a show-cause order issued out of this court, directed to the secretary of state, commanding him to show cause, if any he had, why the writ of mandamus should not issue to compel him to file in [215] his office an instrument or document which purports upon its face to be an amended certificate of incorporation of the Security Savings and Loan Association, a domestic corporation organized under the general corporation law of this state. The answer of respondent, though not so worded, is to the effect that the proposed amendment was an ultra vires act; therefore the amended certificate is not such a paper as can lawfully be filed in his office. We are of the opinion that the secretary of state, in refusing to file the amended certificate, exceeded his authority and jurisdiction. The duties of secretary of state, with respect to filing certificates of incorporation and papers relative to corporations, are ministerial. His duties are pointed out and prescribed by statute. If certificates of incorporation and papers relative thereto substantially comply with the statute, he has no discretion, but may be compelled by mandamus to file them. The discretion to be exercised by the secretary of state does not extend to the merits of an application for incorporation, although it may be exercised as to matters of form. Generally, such officer has no discretionary power to look beyond the face of the incorporation papers, and to determine from matters outside of such papers whether or not to 'file the papers. He cannot consider extraneous matters. If authority for these propositions be desired, it may be found by reference to the provisions of'the statute relative to filing certificates of incorporation, and to the authorities cited in notes to section 212, vol. 1, Fletcher, Cyclopedia Corps. It is not denied that the amended certificate purports upon its face to come within the provision of section 40 of the general corporation act (Rev. Laws, 1142), and that the relator has complied literally therewith, and that it is such a paper as must be filed in the office of the respondent. As the matter now comes before us, we cannot do otherwise than order the writ to issue, compelling the respondent to file the document as presented, with the [216] understanding that the amendment is subject to review in a proper case.