« ПредишнаНапред »
meaning of the laws of this State, and subject to our laws relating to insurance corporations ?”
You state that the burial association referred to in your inquiry is conducted as follows: “It has a president, secretary, treasurer and board of directors. Members are elected by the directors. The conditions of membership are that each member shall pay a certain sum as an entry fee, and that he shall also pay any assessment. Assessments are limited to 12 cents, assessable upon the death of an adult member, and 7 cents, assessable upon the death of a cbild member. If there is sufficient money in the treasury to pay burial expenses upon the death of a member there is no assessment. Upon the death of a member no sum of money is paid to his family or representatives, but the contract of membership provides that an undertaker, employed by the association, shall furnish all that is required for the burial, at a cost estimated to be $100 in the case of an adult and $50 in the case of a child. There is no limit to the number of members other than as stated above. Each member must be a resident of the State, and membership may be limited to residents of a particular city or town.”
Section 65 of chapter 118 of the Revised Laws provides that 66 all corporations, associations, partnerships or individuals doing business under any charter, compact, agreement, or statute of this or any other state, involving the payment of money or other thing of value to families or representatives of policy and certificate holders or members, conditioned upon the continuance or cessation of human life, shall be deemed to be life insurance companies, and shall be subject to the provisions of the insurance laws."
The association whose case is presented by your statement assesses its members, and upon the death of a member furnishes the services of an undertaker and the supplies incidental to a funeral to the value of $100. It is, therefore, in my opinion, an insurance company. Such an association, incorporated in another State, upon complying with the laws relating to foreign corporations, would not be entitled to do business here.
You further inquire whether the United States Burial League, a copy of whose contract you have forwarded to me and which is herewith returned, would be allowed to enter the Commonwealth under the laws relating to foreign corporations, and do the business for which they have been incorporated in the State of New Jersey. This inquiry I must answer in the negative. Very truly yours,
HERBERT PARKER, Attorney-General.
Registered Pharmacist - Suspension of License or Certificate of
Registration - Conviction. . The Board of Registration in Pharmacy, under R. L., c. 76, § 17, which
provides in part that “the license or certificate of registration of a registered pharmacist shall not be suspended for a cause punishable by law until after his conviction by a court of competent jurisdiction,” may suspend the certificate of registration or license of a registered pharmacist who has been duly found guilty of the illegal sale of intoxicating liquors and sentenced to pay a fine therefor and who has paid such fine, notwithstanding the fact that exceptions thereto have been filed and allowed and are still pending for argument before the Supreme Judicial Court.
APRIL 22, 1904. C. F. Nixon, Esq., Secretary, Board of Registration in Pharmacy.
DEAR SIR:— The Board of Registration in Pharmacy requests the opinion of the Attorney-General upon the following state of facts : a pharmacist was found guilty of illegal selling of intoxicating liquors, and sentenced to pay a fine thereon. He paid this fine and filed exceptions, which were allowed and are still pending in the Supreme Judicial Court awaiting argument; the specific question submitted being, is there, upon such state of facts, a conviction within the meaning of R. L., c. 76, $ 17, which is as follows:
If the full board sitting at such hearing finds the person guilty, the board may suspend the effect of the certificate of his registration as a pharmacist for such term as the board fixes, but the license or certificate of registration of a registered pharmacist shall not be suspended for a cause punishable by law until after his conviction by a court of competent jurisdiction.
I am of opinion that there is upon the facts presented such a conviction as is contemplated by the statute authorizing the Board of Registration in Pharmacy to suspend a license or certificate of registration of such pharmacist. The word " conviction " is used in our statutes in two different senses, and in the statute above quoted it is to be taken in its more usual sense, that is, as meaning “ the confession of the accused in open court or verdict returned against him by the jury which ascertains and publishes the fact of his guilt," and does not necessarily contemplate a sentence of the court.
It has been held that the intention of the statute is to give a pharmacist charged with a crime the right to a trial in the court having jurisdiction of his offence, but if his guilt be there established so that the court may impose sentence according to its powers, then it is sufficiently established for the board of pharmacy to act upon their finding and to impose the penalty according to their powers.
Upon the facts submitted to me it would seem that the guilt of the defendant was so far established as to empower the court to impose a sentence, and, indeed, it appears that the court, in the exercise of that power, had imposed sentence and rightly so, notwithstanding the exceptions, taken, under the provisions of R. L., c. 220, $ 3.
A like rule of construction of the word “conviction” is disclosed in the opinion of the court in Commonwealth v. Lockwood, 109 Mass. 323, where it was held that the Governor, with the advice of the Council, might grant a pardon of an offence after verdict of guilty, and before sentence, and while exceptions allowed by the judge were pending in the Supreme Court for argument. This decision was made having regard to the provision of the Constitution, which refers to the pardoning power in the following language : “ The power of pardoning offences, except such as persons may be convicted of before the senate by an impeachment of the house, shall be by the governor, by and with the advice of council; but no charter of pardon, granted by the governor, with the advice of the council before conviction, shall avail the party pleading the same ,” from which it appears that a conviction upon which alone the power to pardon must rest may exist before sentence of the court is imposed. I am therefore of opinion that upon the facts stated your
Board may hold that a conviction, within the meaning of R. L., c. 76, § 17, appears upon which a suspension of the license or certificate of the party so convicted may be made. Very truly yours,
HERBERT PARKER, Attorney-General.
Co-operative Bank — Consolidation – Rights of Minority -- Con
stitutional Law. The Legislature has no power to compel the minority members in an
existing co-operative bank, which is not a stock corporation, to surrender their interest in such bank in exchange for an interest in a consolidated bank, as prescribed in House Bill No. 1181; but if enacted, the provisions of such bill will govern the rights of all members of co-operative banks organized after its passage, and will serve to authorize the consolidation of existing co-operative banks, if such consolidation is assented to by all the members.
APRIL 22, 1904. Hon. Guy A. Ham, Chairman, Committee on Bills in the Third Reading.
- Your committee desires my opinion on the constitutionality of House Bill No. 1181, which authorizes the consolidation
of two or more co-operative banks doing business in the same city or town.
The bill provides for the consolidation of such co-operative banks in the following manner: If two-thirds of the members of each bank in writing approve of the consolidation, and if twothirds of the members present and voting, at a special meeting duly called, vote in favor of consolidation, and if the Board of Savings Bank Commissioners approve, an order may be passed by the Board requiring the consolidation. Such order shall provide that the assets of the merged bank be turned over to the continuing bank, and that the latter assume all liabilities accrued on the former's outstanding shares. As to the rights of the shareholders in the merged bank, it provides : “No more shares shall be sold by or in behalf of a bank or banks so taken over, and for every share of such bank or banks there shall be issued to the holder thereof a share of the continuing bank of the series of the nearest and lower value, and the difference in the values of the old share and the new sbare so issued shall be paid forthwith to the said owner in cash; provided that such a new share, issued to take the place of a pledged share of the terminating bank, shall be issued as a share pledged under the original loan, and the said difference in value shall either be paid in cash to the owner of the pledged share or be credited on his original loan at the election of the continuing bank.”
The effect of a consolidation upon the interests of a dissenting member should be carefully noted. When he took a share of stock in the A co-operative bank, be thereby agreed to pay to that bank $1 per month until there should stand to his credit from his payments and the profits derived from the use of his money the sum of $200, or until the share shall be withdrawn or forfeited. He might withdraw at any time before pledging his share, and receive, under certain restrictions, the money standing to his credit. If he should fall in arrears upon his monthly payments, and so continue more than six months, his share, at the option of the directors, might be forfeited, and he be paid the value of his share less a small fine for being in arrears.
Should this bill become law, according to its terms a two-thirds majority of the members of the A bank, acting with two-thirds of the members of the B bank, could compel a dissenting member in the former bank to make his monthly payments to the latter bank or else withdraw his share. The by-laws and rules of the B bank would govern him instead of those of the bank of which he originally became a member. If he takes a share in the B bank, the share given him is of the series having a value next below that of the series in the A bank, to which his old share
belonged. The difference in value between the exchanged share and the new one, arising from the fact that the member had paid in more on the share in the A bank than the share in the B bank being of a later series credits him with, is given to him in cash, or, if he is a borrowing member, may be credited to him on his loan. Then if he does not keep up his payments on the new share, he ceases to be a member, and if he is a borrowing member, his security will be foreclosed.
It is apparent that the situation is different from that presented by a consolidation of ordinary public service corporations having fully paid shares, wherein there is a provision for buying, at their properly determined value, the shares of dissenting stockholders. In such a case the shares of the minority are taken from them, under legislative authority, upon payment of just compensation. Here no provision is made for taking their interest in the A bank at a properly appraised value paid by the B bank. The members are transferred, with their executory obligations, from one to the other. We have, therefore, no need to consider the power of the Legislature, in view of the public good to be derived from a merger of two banks, to require the property of the minority to be taken and paid for. See Black v. Delaware & Raritan Canal Co., 24 N. J. Eq. 455.
The question is whether the Legislature may, with the approval of two-thirds of the members of each corporation, compel a dissenting member to enter into a new contract with a different corporation.
At the beginning of the discussion certain uncontrovertible propositions may be stated.
It is not within the power of a co-operative bank, organized under the general laws, to consolidate with another without the consent of the Legislature. N. Y., etc., Canal Co. v. Fulton Bank, 7 Wend. 412; Noyes, Intercorporate Relations, SS 17, 18.
It is within the power of a co-operative bank created by special charter to consolidate with another only when its charter permits it. Since the present bill applies to all co-operative banks, in considering its validity we need not investigate the charters of such co-operative banks as were created by special acts.
The power to merge with another similar institution is not one of the implied powers in furtherance of the objects of a co-operative bank. When a person enters one bank as a member of the association, he agrees to be bound by such acts as the majority may decide as advisable within the scope of the corporate purposes. He does not agree that the corporation may transfer all its liabilities and assets, including its contract with him, to another corporation.