State v. Cook.

Citation174 Mo. 100,73 S.W. 489
PartiesSTATE ex rel. JONES et al. v. COOK, Secretary of State.
Decision Date20 March 1903
CourtUnited States State Supreme Court of Missouri

1. Rev. St. 1899, § 1299, provides that no persons shall engage in the business of private bankers "without a paid-up capital of not less than $5000." Section 1278 provides that incorporated companies shall not engage in the business of banking in cities with a population of 150,000 or more with a less paid-up capital than $100,000, and section 1301 provides that all provisions of the article, so far as the same are applicable, apply to private bankers. Held, that individuals desiring to engage in the business of private banking in a city of over 150,000 inhabitants are not required to have a paid-up capital of over $5,000.

2. Rev. St. 1899, § 1299, declares that no person shall engage in the business of private banking without a paid-up capital of a certain sum, and section 1277 enacts that the Secretary of the State shall, before the banker does business, make an examination to ascertain whether the capital has been paid, and, if he shall find that the law has been complied with, he shall grant a certificate to him showing that the banker is authorized to transact business. Held, that where the proper amount of capital stock has been paid up, it is the duty of the Secretary of State to grant a certificate, notwithstanding the fact that the business is to be conducted in a department store conducted by the banker.

3. The duty of the Secretary of State in the premises being purely ministerial, mandamus lies to compel the Secretary to issue the certificate.

In Banc. Mandamus by the state, on the relation of Lawrence M. Jones and another, to compel Sam B. Cook, as Secretary of State, to grant to relators authority to carry on the business of private banking in Kansas City. Alternative writ made peremptory.

Proceeding by mandamus, on the relation of Lawrence M. and J. Logan Jones, to compel the Secretary of State to grant to them the state's authorization to carry on, as partners, the business of private banking in Kansas City.

The petition of relators, on which the alternative writ herein was issued, states a compliance on their part with all the requirements provided in section 1299, Rev. St. 1899; its request upon the Secretary of State that he make or cause to be made an examination to ascertain if said provision of the law had been complied with on the part of relators, and, if complied with, that he issue to them the state's authorization to engage in said business of private banking; and the refusal of the Secretary so to do.

To the alternative writ issued in obedience to the prayer of relators' petition, respondent filed the following return:

"Now comes the respondent, Sam B. Cook, and, for a return to the alternative writ of mandamus herein, admits that he is the Secretary of State of the state of Missouri, and that he was Secretary at and during all the time mentioned in complainants' petition; admits that as such Secretary it is his duty, when an individual banker has filed in his office the requisite certificate to commence business under the laws of this state as a private banker, to examine, or cause an examination to be made, as to the amount of capital actually paid up, the manner of transacting business, and to ascertain whether or not all the laws of the state have been complied with in reference to the organization of private banks, and, when it is found upon such examination that the provisions of the law have been complied with by the individual or individuals desiring to be authorized to transact private banking business, to grant them a certificate to that effect.

"Respondent further says that the certificate filed by complainants in his office, and referred to in the petition herein, provides that the business to be conducted by said complainants as private bankers shall be at Kansas City; that said Kansas City is a municipal corporation containing more than one hundred and fifty thousand inhabitants, and that under the laws of this state no person or persons can be authorized to transact business as private bankers unless capital be first paid in to the amount of one hundred thousand dollars; that complainants in their said certificate certify and acknowledge to the payment of only ten thousand dollars, and that by reason of said fact said certificate as filed in the office of this respondent is insufficient to warrant said respondent in issuing a certificate to said complainants to do the business of private bankers in said city.

"Respondent denies that complainants have complied with all the provisions of the laws of the state of Missouri required for the purpose of organizing a private bank; denies that, as Secretary of State for the state of Missouri, he refuses to grant to relators a certificate setting forth the fact that they have complied with the law in the case of individual bankers made and provided, but avers that he is now, and has been at all times, willing to issue said certificate, when a proper statement as to the capital invested and evidence of character of business and place of business has been properly acknowledged and filed in his office by complainants.

"Respondent further avers that, until said complainants have certified to him that they have paid up one hundred thousand dollars of capital to be invested and used in the transaction of the sole business of private bankers, he is not and cannot be required to examine into the condition of such payment, the manner of transacting business, or to issue a certificate to said complainants authorizing them to transact the business of private bankers at Kansas City, said city having a population of more than one hundred and fifty thousand.

"Respondent further states that it is the object and purpose of the complainants to locate and conduct their business as private bankers in the same building, and on the third floor thereof, occupied by them now as a department store in said Kansas City, Missouri, and that said bank, when so organized and run, is to be conducted in conjunction with their said department store, said complainants being engaged in owning and conducting a general department store business at said city, and respondent says that said complainants have no right or leave under the laws of this state to operate or transact the business of private bankers in connection and conjunction with the business and affairs of their department store at said city, and that they have no statutory or other legal right to transact the business of private bankers in the building and on the same floor of the building occupied in part by them in their department store business. Respondent avers that the laws of the state of Missouri require banking business to be conducted in its own banking house, separate and apart from any other business.

"Respondent, further answering, says that heretofore, to wit, on the ____ day of ____, 1902, after full presentation of the matter and all facts in connection therewith, together with the certificate showing that ten thousand dollars of capital has been paid in, filed in his office, he, upon due consideration of the same, found and determined that said complainants had not properly qualified themselves under the laws of the state of Missouri to engage in the business of private bankers, and having not so properly qualified, and not having filed a proper certificate showing that one hundred thousand dollars had been paid up, to be used in the transaction of the business of themselves as private bankers, he, the respondent, refused to issue a certificate, under the seal of his office, granting to said complainants authority to transact the business of private bankers at Kansas City, Missouri.

"Wherefore respondent says that he has fully, fairly, and officially passed upon and exercised his judgment as to the right of complainants to engage in said business in said city upon the certificate filed by them in the office of this respondent as mentioned in complainants' petition; wherefore, and upon consideration of the foregoing, this respondent asks to go hence with his costs."

To this return relators replied:

"Now come the relators, and, for their reply to the return filed by the respondent to the alternative writ of mandamus herein, admit that the certified copy of the relators' statement set forth that the place at which relators' business as private bankers is to be carried on is Kansas City, Missouri, and admit that said Kansas City is a municipal corporation containing more than one hundred and fifty thousand inhabitants.

"Said relators, for their further reply, state that Jones Dry Goods Company is a business corporation duly organized under and by virtue of the laws of the state of Missouri, and that as such it is conducting a general merchandise business, or what is generally known as a `department store,' in said Kansas City, Missouri; that the relators are large stockholders and officers of said corporation, and said relators admit that they have rented a room on the third floor of one of the buildings occupied by said Jones Dry Goods Company as a department store; that said relators propose to do a private banking business in the room so rented, and that one of the entrances to said banking room will be opened into one of the store rooms of said Jones Dry Goods Company, but relators deny that said banking business is to be conducted in conjunction with said department store, but say that said banking business is to be conducted separate and distinct in every particular from the business of said Jones Dry Goods Company; that said relators will own their own banking house, the fixtures therein, and it is not the object or purpose of said relators to receive deposits or pay checks except over their own counter...

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24 cases
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