Opinion
No. 35398
Decided February 11, 1958.
Corporations — Ohio legal reserve stock life insurance company — Amendment of articles of incorporation — Duty of Secretary of State to record — Section 3907.03, Revised Code — Certification of Attorney General prerequisite — Sufficiency of — Mandamus to require recording, denied.
IN MANDAMUS.
Relator, in its petition for a writ of mandamus, alleges that it is a corporation organized under the laws of Ohio; that by action of its shareholders on October 28, 1957, its articles of incorporation were amended, and pursuant to statute a certificate of amendment was duly lodged in the office of the Secretary of State; that such certificate was duly submitted by the Secretary of State to the Attorney General, who approved the same as to legality and duly issued his certificate to that effect and delivered such certificate to respondent, together with a letter of transmittal, which letter is attached to and made a part of the petition; and that the respondent has refused to record such certificate of amendment.
Relator prays for a writ of mandamus directing respondent to record the certificate of amendment.
Endorsed on the certificate of amendment are the words:
"Approved: (See letter of transmittal and certification attached). October 29, 1957.
"[Signed] Wm. Saxbe
"William Saxbe
"Attorney General of Ohio."
The letter of transmittal recites in part as follows:
"This company was incorporated under Ohio law in 1906, as a legal reserve stock life insurance company. The company in my opinion has a present legal right to amend its articles of incorporation being as it is a stock company, provided always that such amendment is not inconsistent with the Constitution and laws of the United States and of this state.
"* * *
"Any decision reached by this office upon the complex questions raised by this amendment will not finally adjudicate the matter. It is recognized that the rights of some one hundred and fifty thousand policyholders are involved, which rights must and should in my judgment be finally determined by the Supreme Court.
"In view of these facts and in order that the rights of all parties affected may be finally so adjudicated without delay, I have endorsed my approval upon the amendment and hereby certify the same as provided by such Section 3907.03, with, however, the advice to you that, as Secretary of State, you refuse to record such amendment and certificate."
Upon application, six policyholders of relator were granted leave to intervene on behalf of themselves and all others similarly situated.
To the answers of respondent and intervenors, relator filed a demurrer "for the reason that such answers are insufficient in law to constitute a defense to this action in mandamus."
Messrs. Bricker, Marburger, Evatt Barton, Mr. William R. Chadeayne and Mr. Donald Hoskins, for relator.
Mr. William Saxbe, attorney general, and Mr. Wm. E. Knepper, for respondent.
Messrs. White, Raub Forrey, Mr. William A. Wick and Messrs. Knepper, White, Richards, Miller Roberts, for intervenors.
Section 3907.03, Revised Code, provides that, when the Attorney General finds that the articles of incorporation (or amendment thereto) are "in accordance with Sections 3907.01 to 3907.21, inclusive, of the Revised Code, and not inconsistent with the Constitution and laws of the United States and of this state, he shall certify to and deliver them to the Secretary of State, who shall cause them * * * to be recorded."
The Attorney General has not so certified, and, until he does, there is no clear duty imposed on the Secretary of State to file the certificate of amendment, and the prerogative writ of mandamus should be denied.
Since the demurrer to the answers searches the record, we sustain the demurrer as a demurrer to the petition and deny the writ.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.