1906-1908 Ind. Op. Att'y Gen. p. 142

142. ciation attempts to incorporate requires that the articles shall state that the two hundred or more persons from whom applica- tions for membership have been secured have been examined and' recommended by a reputable physician. Article 9 of the articles of i ncorporation submitted states that "All persons making application shall be examined and recom- mended by a reliable physician." Article 10 merely states that 481 bona fide applications have been secured from over two hundred persons ,for $200,000.00 insurance, and that $2.00 per thousand have been deposited with the incorporators. There is nothing in the articles to indicate that these applicants have been examined and recommended by a reliable physician. I am there- fore unable to approve the articles in question inasmuch as it does not clearly appear that this company is an accident company only, and does not intend to write life insurance exclusively. I accordingly return the articles to you without my approval. SCHOOLS-REQUIREMENTS OF. ACT REGARDING STATE CONTRACTS FOR FURNISHING SCHOOL BOOKS. April 1, 1907. Hon. Fassett A. Cotton, Superintendent of Public Instruction, Indianapolis, Indiana: Dear Sir.-You have addressed to me the question whether the act of 1907 (Senate Bill, 353) found on page 143 of the ses- sion laws of that year, is to be followed, rather than that found on page 586, (Senate Bill 388). Both of these acts originated in the senate, were introduced by the same senator, relate to the same subject and were respec- tively approved by the governor on March 2nd, and March 12th, 1907. A general rule of statutory construction requires that all acts, passed at the same session of the legislature, relating to the same subject matter, shall be deemed operative, if they can be recon- ciled (26 Am. and Eng. Encyc. Law, page 623; State v. Rackley 2 Blkf. 249, 250). Only in the case of irreconcilable conflict, will the measure last enacted, control. The two statutes in question, can be reconciled without doing violence to their language. The latter act (p. 586) requires that state contracts for furnishing school books must provide for the appointment by the several superintendents of the several coun- ties, of one local mnerchant in each county as a depository for school books to be sold and distributed by him to the trade and to individual purchasers within the county. Such depository buys the books from the state contractor at 1-5 per cent. discount from the contract price, and sells them to the trade at 10 per cent. dis- count from said price, and to individual purchasers at the price, fixed by state contract. No provision, however, is made in this act for the possible contingency that in some cotnties the county superintendent may not be able to find a local dealer who will consent to handle the books at the margin above indicated; nor is there any guarantee provided that the individual purchasers shall be supplied with books in time for the opening of the school year. The act found at page 143 meets these contingencies. It re- quires every state school book contract to provide that the books contracted for "shall be delivered in every school corporation in the state and shall there be placed on sale at retail by some local trades- man to all school children at prices named in the accepted bid." This amounts to a guaranty.by the contractor that there shall be a supply on hand to meet the local demand, delivered either by the depository or by the local dealer, subject, however, to the further provisions of the act; and covers the possible case, above referred to, where there is no depository selected by the county superintendent. The act then provides for still a third case; namely, where the contractor himself can not secure a responsible local dealer to handle the books. In that event, he must notify the township trustee or president of the school board on or be- fore August 1st. The latter officers thereupon are required to sell the books to students. It will be noted that in the act on -page 586, the contractor is required to sell at 15 per cent. discount to the depository, while in the prior statute the miximum commission which the contractor is required to pay is 10 per cent. These requirements do not necessarily conflict, since the first relates to the case of a sale to the depository, if such there is, and the latter refers to instances where no depository has been selected and hence the contractor, under his guaranty, is compelled to select his own local trademeli. To these he pays a commission of not to exceed 10 per cent. I may add, that the later act. (Senate Bill 388), permits pres- ent contractors to avail themselves of that statnte; but there is no requirement that such election shall carry with it the obligra- tions imposed by Senate Bill 353. Hence, if a contractor so de- sires, he may accept the provisions of the act last passed, and, in cases where there is a depository duly selected, he may ship directly to the latter, pursuant to the statute. VOLUNTARY ASSOCIATIONS-THE LAKE AGRICULTURAL COMPANY. April 2, 1907. Hon. Fred A. Sims, Secretary of State, Indianapolis, Indiana: Dear Sir.-I have your communication of recent date, asking concerning the legal status of a voluntary association (The Lake Agricultural Company) incorporated October, 1881, under the act of February 20, 1867, which filed its articles with the county re- corder but not with the secretary of state; and which, in 1906, filed a certificate extending its term of existence, but whose original articles of association were not presented to you for record until November 20, 1906, and after the filing of said cer- tificate of extension. When this company was incorporated in October, 1881, there was no law in force, requiring that articles should be filed with the secretary of state: see R. S. 1881, §3504. In 1891, an act was passed requiring corporations thereafter organized to file their articles with the secretary of state. (Acts 1891, p. 392, Burns' Stats. 1894, §3424,. In 1895, a statute was enacted, amending the act of 1891, and making the above requirement applicable to all corporations which had failed to comply with the act of 1891, (Burns' Stats. 1901, §3424, Acts 1895, p. 255). The amendatory statute contained no provision with reference to corporations organized prior to 1891. The only law governing the association in question is that referred to above, §3504 R. S. 1881, which is identical with §4 of of the act of 1867 under which the Lake Agricultural Company incorporated. That section reads in part as follows: "Every such association shall, from the time such rec- ord is filed in the proper recorder's office be deemed and held to be a corporation, and shall have and possess all the rights, powers and privileges given to corporations by common law." ly opinion therefore is. that such a company as is described in your letter is now duly incorporated, despite the fact that the original articles were not filed until after the filing of the certi- ficate of extension.