156 S.W.2d 708 (Mo. 1941), 37643, State ex rel. Bank of Nashua v. Holt

Docket Nº37643
Citation156 S.W.2d 708, 348 Mo. 982
Opinion JudgeHYDE
Party NameState of Missouri at the relation of Bank of Nashua, Relator-Appellant, v. R. W. Holt, Commissioner of Finance, Defendant-Respondent
AttorneySebree, Shook & Gisler and B. F. Boyer for appellant. Roy McKittrick, Attorney General, and Lawrence L. Bradley, Assistant Attorney General, for respondent.
Judge PanelHyde, C. Bradley and Dalton, CC., concur.
Case DateDecember 12, 1941
CourtUnited States State Supreme Court of Missouri

Page 708

156 S.W.2d 708 (Mo. 1941)

348 Mo. 982

State of Missouri at the relation of Bank of Nashua, Relator-Appellant,

v.

R. W. Holt, Commissioner of Finance, Defendant-Respondent

No. 37643

Supreme Court of Missouri

December 12, 1941

Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.

Reversed and remanded (with directions).

Sebree, Shook & Gisler and B. F. Boyer for appellant.

(1) Mandamus is the appropriate remedy to compel performance of a ministerial act. State ex rel. Jones v. Cook, 174 Mo. 100, 73 S.W. 489. (2) The acts required of respondent before issuing the certificate here sought are purely ministerial and the writ should issue. Art. 2, Chap. 39, R. S. 1939; Secs. 7942, 7943, 7947, 7972, 7973, R. S. 1939; State ex rel. Jones v. Cook, 174 Mo. 100, 73 S.W. 489; Senate Bill 65, 61st General Assembly, approved June 26, 1941; Art. 8, Chap. 12, R. S. 1899; Secs. 2499, 2495, R. S. 1889; Secs. 1277, 1290, 1327, 1328, 1329, R. S. 1899; Laws, 1907, p. 124; Laws 1915, pp. 129, 145; Secs. 11730, 11761, R. S. 1919; Laws 1915, p. 140, section 78; Laws 1927, pp. 217, 229; Sec. 5347, R. S. 1929; State ex rel. Wooldridge v. Morehead, 100 Neb. 864, 161 N.W. 569, L. R. A. 1917D, 310.

Roy McKittrick, Attorney General, and Lawrence L. Bradley, Assistant Attorney General, for respondent.

(1) The petition and alternative writ of mandamus issued, wholly fails to state a cause of action, in that it does not show appellant has a clear right to a writ of mandamus. State ex rel. McDowell, Inc. v. Smith, 334 Mo. 653, 67 S.W.2d 50; State ex rel. Spratley v. Maries County, 339 Mo. 557, 98 S.W.2d 623; State ex rel. Crandell v. McIntosh, 205 Mo. 589; Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742; 18 C. J. S., sec. 176 c., p. 585; Secs. 7940, 7973, R. S. 1939; 18 C. J. S., sec. 23, p. 404; Forest City Mfg. Co. v. International L. G. W. Union, 233 Mo.App. 935, 111 S.W.2d 934; 7 Amer. Juris., sec. 31, p. 44; Secs. 5009, 5010 and 5441, R. S. 1939; State ex rel. Kent v. Olenhouse, 324 Mo. 49, 23 S.W.2d 83. (2) Respondent has authority, under Section 7942, R. S. Missouri, 1939, to refuse to issue a certificate of compliance to a bank that has amended its Articles of Association so as to change its location from one town to another, if, upon investigation, he determines that the new locality cannot adequately support said bank without endangering it and any bank already in that location. Secs. 7942, 7973, R. S. 1939; State ex rel. Gorman v. Offutt, 223 Mo.App. 1172, 26 S.W.2d 830; Secs. 7932, 7955, 7968, R. S. 1939; Board of Commissioners v. Davies, 1 Wash. 290, 24 P. 541; Common Council of Jackson v. Harrington, 160 Mich. 550, 125 N.W. 383; State ex rel. Amer. Asphalt Roof Corp. v. Trimble, 329 Mo. 495, 44 S.W.2d 1103; Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65; State ex rel. Sewer Dist. v. Smith, 342 Mo. 365, 115 S.W.2d 816; Bragg City Special Road Dist. v. Johnson, 323 Mo. 990, 20 S.W.2d 22; State v. Irvine, 335 Mo. 261, 72 S.W.2d 96; Fishbach Brewing Co. v. St. Louis, 231 Mo.App. 793, 95 S.W.2d 335; McGill v. St. Joseph, 225 Mo.App. 1033, 38 S.W.2d 725; State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990; Senate Bill No. 65, 61st General Assembly; Alexander v. Mayor of Alexandria, 5 Cranch, 1; Bailey v. Clark, 21 Wall. 284, 88 U.S. 284; Jordan v. Roche, 288 U.S. 436; Helvering v. New York Trust Co., 292 U.S. 455; State ex rel. Jones v. Cook, 174 Mo. 100; Public Serv. Comm. v. Kansas City P. & L. Co., 325 Mo. 1217, 31 S.W.2d 67; Secs. 7895, 7904, 7910, R. S. 1939. (3) Mandamus will not be used to control a discretionary act absent allegations of abuse. State ex rel. Dolman v. Dickey, 280 Mo. 536, 219 S.W. 363; State ex rel. Renner v. Noel, 346 Mo. 286, 140 S.W.2d 57; Mangiaracino v. Haney, 141 S.W.2d 89.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

[348 Mo. 984] This action is mandamus in the Circuit Court of Cole County. After defendant (Commissioner) made return to the alternative writ, relator (Bank) filed motion for judgment on the pleadings. The court entered judgment quashing the writ, and relator has appealed.

Page 709

The following facts were admitted by the pleadings. The Bank was incorporated in 1905 with $ 12,000 capital stock and was located in Nashua in Clay County. On May 15, 1940, at a stockholders' meeting, properly convened and held, four resolutions were adopted authorizing changes in the Articles of Incorporation of the Bank, as follows:

"1. Changing the bank's name from 'Bank of Nashua' to 'Bank of North Kansas City;'

"2. Changing the location of the bank from Nashua, Clay County, Missouri, to North Kansas City, Clay County, Missouri.

"3. Increasing the capital stock from $ 12,000 to $ 25,000;

"4. Establishing the number of directors as seven shareholders."

These changes, properly certified, acknowledged and recorded, were presented to the Commissioner with application for his certificate showing that the Bank had complied with the provisions of Section [348 Mo. 985] 7973, R. S. 1939, relating to changes in its articles of incorporation. The Commissioner refused a certificate on the ground that he was not required to do so unless, after investigation, he determined "that the probable volume of business in the locality to which the bank desires to move can adequately insure and maintain the solvency of said bank in that locality and the solvency of any bank or trust company already existing at such location without endangering the safety of any bank or trust company already in such location or such community as a place of deposit of private or public moneys." He claimed such authority under Section 7942, R. S. 1939. He further stated in his return that he did make an investigation and, as a result thereof, determined that this would not be true, but that, on the contrary, the probable volume of business would be insufficient.

The Bank relies upon Section 7973 as authorizing the change it seeks to make in its articles of incorporation regarding change of location. This section, omitting the requirements for procedure (including notice, stockholders' meeting and certification and recording of the proceedings) which it is admitted were properly fulfilled, was as follows:

"Sec. 7973. Any bank now doing business in this state under any law thereof, general or special, may at any time increase its capital stock to any amount or change the length of its corporate life or avail itself of the privileges and provisions of this article in accordance with the provisions of this article, or otherwise change its articles of agreement in any way not inconsistent with the provisions of this article, with the consent of the persons holding a majority of the stock of such bank, which consent shall be obtained at a meeting of the shareholders, called for that purpose. . . . (Here follow provisions for notice of the meeting, recording of changes and filing of a certified copy thereof with the Commissioner.) Upon the filing of such certified copy the commissioner shall promptly satisfy himself that there has been a compliance in good faith with all the requirements of the law relating to such increase or change, and when he is so satisfied he shall issue a certificate that such bank has complied with the law made and provided for the increase of capital stock, and the amount to which such capital stock has been increased or for the change in the length of its corporate life or any other change provided for in this section. Thereupon the capital stock of such bank shall be increased to the amount specified in such certificate or the length of the corporate life of the bank shall be changed or other authorized change made as specified in such certificate. Such certificate, or certified copies thereof, shall be taken in all the courts of the state as evidence of such increase, or change."

This Section was amended in 1941 (Laws 1941, p. 670) after this case had been decided in the circuit court and while pending here on appeal by adding thereto, at the end of this Section, the following:

[348 Mo. 986] "Provided, however, that if the change undertaken by any such bank in its articles of agreement shall provide for the relocation of such bank in another community, the commissioner shall make or cause to be made an examination to ascertain whether the convenience and needs of such new community wherein such bank desires to locate are such as to justify and warrant the opening of such bank therein and whether the probable volume of business at such new location is sufficient to insure and maintain the solvency of such bank and the solvency of the then existing banks and trust companies at such location, without endangering the safety of any bank or trust company in such locality as a place of deposit of public and private moneys, and, if the commissioner, as a result of such

Page 710

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