State ex rel. Bank of Nashua v. Holt
Decision Date | 12 December 1941 |
Docket Number | 37643 |
Parties | State of Missouri at the relation of Bank of Nashua, Relator-Appellant, v. R. W. Holt, Commissioner of Finance, Defendant-Respondent |
Court | Missouri Supreme Court |
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.
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.
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:
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 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:
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:
The Commissioner contends that the words "or otherwise change its articles of agreement in any way not inconsistent with the provisions of this article," in Section 7973, "was intended to graft other sections (of the article on Banks) into the provisions of Section 7973, and make them laws relating at such change;" and that the requirements which a new bank must meet in order to obtain a certificate of...
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