F. M. Smith et al. v. John L. Wortham, Secretary of State, 106 Tex. 106

Mr. Justice PHILLIPS delivered the opinion of the court. This is a proceeding to compel the respondent to approve the application for a. corporate charter of the Dallas Automobile Club Building Association. The proposed charter states the following as the purpose for which the corporation is to be formed: “To support and maintain an automobile club, the purpose and object of which shall be to promote innocent sport by means of automobiles.” The relators contend that with this designation of its purpose they are entitled to form the corporation under subdivision 36,

article 1121, Revised Statutes, 1911, which authorizes the formation of corporations for the purpose: “To support and maintain bicycle clubs and other innocent sports.” The respondent refused to approve and file the charter, and now resists the application for a mandamus upon the following grounds: 1. That the rule of ejusdem. generis should be applied in the construction of subdivision 36 of

article 1121, under which the meaning of the general words, “and other innocent sports,” is restricted by the particular designation of “bicycle clubs”; that accordingly the general words of the clause may be availed of for the formation of corporations for the purpose of supporting and maintaining only such innocent sports as may be indulged in by the use of instrumentalities performing substantially the same office as bicycles, and that automobiles are not within such class. 2.

That if this rule of construction be not applied, so much of the subdivision as authorizes the formation of corporations other than for the purpose of supporting and maintaining bicycle clubs, is unconstitutional as a delegation to the Secretary of State of legislative authority in the right to determine what are innocent sports. 3. That tire purpose of the corporation is not sufficiently stated to enable him to determine whether that which it proposes to support and maintain is an innocent sport.

In this connection the respondent admits in his answer “that any innocent sport indulged in by means of an automobile would, in his opinion, if it be held by this court that he is bound in law to pass upon such question, be an innocent sport.” This admits, however, only that which would necessarily be true under the premise stated, and is therefore of no force as an aid in the determination of the question presented.

The authority of this court to compel by mandamus the performance by the Secretary of State of an official act exists only in those instances where he is under a clear legal duty to perform the particular act. Judicial revision of his action in rejecting a charter of a corporation tendered him for approval on account of its purpose clause is not justified unless the purpose 'named is clearly authorized by law. The obvious intention of the Legislature in the enactment of subdivision 86 of

article 1121 was to provide for the formation of corporations for the purpose of supporting and maintaining those certain sports commonly recognized and classed as innocent sports, bio attempt was made to designate all of them by name, but in the language employed there is a clearly expressed recognition of their several kinds and. individual existence as forms of amusement or recreation. This is manifest since the purpose authorized is not the support and maintenance of innocent sport in the abstract.

If the clause were couched in such terms and simply read “to support and maintain innocent sport,” it would exclude the idea of any need of further particularization either in respect to the means to be used or the distinctive sport intended, and the phrase would itself suffice as the purpose clause of such a corporation. Under such a statute the charter in question would undoubtedly be sufficient.

Instead, however; of dealing with the subject in this way as it might have done with the same general end in view, the structure and terms of the subdivision plainly indicate that the Legislature had distinct sports in mind in its enactment and framed it accordingly. Proof of this lies in the use of the term “bicycle clubs” clearly in the sense of a definite innocent sport. The language is not apt, but it could have been used in no other sense since the general words “and other innocent sports,” which immediately follow, necessarily impose such characterization upon it.

The phrase, “and other innocent sports,” could only imply a preceding designation by name of some one or more innocent sports.

The effect of this phrase is the same as though, for illustration, instead of the term “bicycle clubs” being used, some well recognized innocent sport, such as baseball, had been named and the entire clause had read: “To support and maintain baseball and other innocent sports.” With a term thus used in the opening words of the subdivision in the sense of a specification of a particular innocent sport, for the support and maintenance of which corporations may be formed, the general words “and other innocent sports” can be logically construed only as having reference to other particular or individual innocent sports and as intending a designation by name of the sport or sports contemplated, in the charter of any corporation formed under their authority.

The result of any other construction is to deny them effect. That they can not themselves be sensibly employed for the purpose clause of a corporation, as the general words of certain other subdivisions of the statute may he, is manifest. Unless, therefore, they have reference to definite innocent sports they perform no service in the statute. The purpose clause of the charter in question designates nothing that is recognized or can be classed as an innocent sport and makes no attempt to do so, and we are accordingly without authority to revise the respondent’s action in refusing to approve the charter.

We do not agree with the respondent’s contention that the doctrine of ejusdem generis should be applied in the construction of this subdivision of the statute. • It has no application where the specific words exhaust the class of objects referred to, whereby the general words must bear a different meaning or be denied effect. Our view is, as above stated, that the term “bicycle clubs” was used in the sense of a distinct and individual innocent sport, complete within itself and separate in its identity.

It therefore gives no color to the general words of the clause which refer to other innocent sports equally distinctive and individual in their nature. Neither do we regard the clause as in any sense involving an attempt to confer legislative authority upon the Secretary of State. The mandamus is refiised.