dissenting:
When parties desiring to organize a corporation have complied with the several provisions of the statute it is made the duty of the Secretary of State to issue to them a certificate of incorporation. His discretion in the matter only extends to the determination of the questions whether or not those making the application have complied with the statutory requirements, and in this case, the proposed corporation being not for pecuniary profit, whether there is an existing one of the same name. Section 29 of chapter 32 (Hurd’s Stat. 1905, p. 502,) provides that societies, corporations and associations not for pecuniary profit may be organized by three or more citizens of the United States who shall desire to associate themselves for any lawful purpose other than for pecuniary profit, by their making, signing, acknowledging and filing in the office of the Secretary of State a certificate in writing, in which shall be stated the name or title by which such corporation shall be known in law, the particular persons and object for which it is formed, the number of trustees, directors or managers, and the names of the trustees, directors or managers selected for the first year of its existence. There is no question in this case but that the relators had fully complied with the requirements of this -section. Section 30 then requires the Secretary of State to issue a certificate of the organization of the proposed corporation, making a part thereof all papers filed in his office in and about the organization thereof and duly authenticated under his hand and the seal of State, which shall be recorded, etc., and upon compliance with the foregoing'conditions the corporation shall be deemed fully organized: “Provided, the Secretary of State shall not issue a certificate of organization to any corporation, society or association, under the name of any then existing.”
It will thus be seen that the only limitation upon the power and duties of the Secretary to issue the certificate is, that the proposed corporation shall not be organized under the name of any then existing. This provision is construed in the foregoing opinion as authorizing a refusal to issue the certificate if, in the opinion of the Secretary of State, the name is not the same but “so similar” as to be liable to produce confusion in the transactions of the two corporations, and clothes him with the judicial power of deciding, in advance of the organization, whether or not sutih confusion will or may arise. His duties are purely ministerial, and he has no discretion except under the statute, as above stated. It is not claimed that the two names here in question are the same. The words common to both, “National Liberty,” are merely descriptive of the names “League” and “Legion,” which are of entirely different meanings, “League” being defined “as an alliance of persons,” and “Legion” as “a military body or organization.” A court, when applied to for a peremptory writ of mandamus, may, no doubt, in the exercise of a sound judicial discretion, refuse the writ, even though on the face of the petition a clear right thereto is shown. But that is because- of its judicial powers, whereas here the question simply is whether a ministerial officer shall be required to perform a plain statutory duty.
We think the foregoing sections of the statute relating to the organization of corporations not for pecuniary profit have been confused with section 2 of chapter 32, providing for the organization of corporations “for pecuniary profit.” Prior to the amendment approved May 16, 1905, that section was similar in its provisions to section 30, supra,—that is, it simply provided that a new corporation should not be organized in the same name as that of one already in existence. By the amendment of May 16 it was provided that “no license shall be issued to two companies having the same or a similar name.” It is fair to presume that the legislature intended by the added words “or a similar name,” where the corporation is for pecuniary profit, to vest the Secretary of State with the discretionary powers which he attempted to exercise in this case and which the majority opinion holds he may exercise on application for a certificate of organization not for pecuniary profit. In our opinion it must be presumed that if the legislature had intended to limit the right of the parties to organize a corporation or society not for pecuniary profit to a name similar to one already in existence, it would have amended section 30, supra, at the same time that it amended the foregoing section 2. There is reason for the distinction, one corporation being for the transaction of business relating to pecuniary profit and the other having no such purpose. But whether that is true or not, we -are unable to see how the Secretary of State can be authorized to read into the statute a qualification which the legislature has seen fit to omit.