State ex rel. Equality Sav. & Bldg. Assn. v. Brown

• Citation: 68 S.W.2d 55
• Decision Date: 13 February 1934
• Docket Number: No. 33418.,33418.
• Parties: STATE OF MISSOURI EX REL. EQUALITY SAVINGS AND BUILDING ASSOCIATION, a Corporation, Relator, v. DWIGHT H. BROWN, Secretary of State.
• Court: Missouri Supreme Court

68 S.W.2d 55

STATE OF MISSOURI EX REL. EQUALITY SAVINGS AND BUILDING ASSOCIATION, a Corporation, Relator, v. DWIGHT H. BROWN, Secretary of State.

No. 33418.

Supreme Court of Missouri.

Court en Banc, February 13, 1934.

Mandamus.

PEREMPTORY WRIT ISSUED.

Samuel H. Liberman and A.M. Menzi for relator.

(1) By the plain and unequivocal terms of Section 5613 (Laws 1931, p. 158), the only fee required to be paid in order to obtain an extension of corporate existence by building and loan associations, is a fee of $5. Sec. 5613 (Laws 1931, p. 158). (2) Any general statutes, dealing with corporations generally, are superseded and qualified by a special statute relating to a special kind of corporation. In re Tevis v. Foley, 325 Mo. 1050, 30 S.W. (2d) 68; State ex rel. Hyde v. Buder, 315 Mo. 791, 287 S.W. 307; State ex rel. Monier v. Crawford, 303 Mo. 652, 262 S.W. 341; Folk v. St. Louis, 250 Mo. 116, 157 S.W. 71; State ex rel. Mo. State Life Ins. Co. v. Hall, 52 S.W. (2d) 174; State ex inf. Barrett v. Imhoff, 291 Mo. 603, 238 S.W. 122; State ex rel. Jones v. Drainage District, 252 Mo. 345, 158 S.W. 633. (3) The respondent, as a ministerial officer, may not question the constitutionality of Section 5613. State ex rel. Ry. Co. v. Becker, 41 S.W. (2d) 188; State ex rel. Thompson v. Jones, 41 S.W. (2d) 393; State ex rel. Railroad Co. v. Johnson, 234 Mo. 338, 137 S.W. 595, (4) Section 5613 does not violate Section 21 of Article X of the Constitution of Missouri, since the constitutional provision applies only to fees to be paid upon original incorporation.

Roy McKittrick, Attorney-General, Olliver W. Nolen and James L. HornBostel, Assistant Attorneys-General, for respondent.

(1) Respondent even though a ministerial officer can justify his refusal to perform because a statute is unconstitutional, when so advised by the Attorney-General. State ex rel. Wiles v. Williams, 232 Mo. 71; State ex rel. Railroad Co. v. Becker, 41 S.W. (2d) 191; Ex parte Bass, 328 Mo. 202; State ex rel. Thompson v. Jones, 328 Mo. 275, 30 A.L.R. 396; Parker v. State, 133 Ind. 178; Jackson County v. State, 155 Ind. 604. (2) Relator in law is not a corporation formed for benevolent, religious, scientific or educational purposes and must pay the regular fee for extension of its corporate existence. Sec. 21, Art. 10, Const. of Mo.; State ex rel. Richey v. McGrath, 95 Mo. 193, 34 A.L.R. 646, 647; State ex rel. Telephone Co. v. Roach, 190 S.W. 862. (3) Section 5613, Chapter 35, Laws 1931, page 158, is unconstitutional and of no force and effect. Section 4556, R.S. 1929, controls fees for extension of corporate existence. Sec. 4556, R.S. 1929; Sec. 21, Art. X, Const. of Mo.; State ex rel. Telephone Co. v. Roach, 190 S.W. 863; State ex rel. Barrett v. First Natl. Bank, 297 Mo. 410; Benanti v. Securities Ins. Co., 224 Mo. App. 415.

ATWOOD, J.

Relator, Equality Savings & Building Association, a corporation, commenced an original proceeding in this court by filing a petition for writ of mandamus directed against respondent, Dwight H. Brown, in his capacity as Secretary of State. Respondent entered his appearance, waived issuance and service of the alternative writ, stipulated that the petition should stand as and for the alternative writ, and filed return. Relator thereafter, on January 18, 1934, filed motion for judgment on the pleadings, and by agreement of parties the cause was submitted on briefs.

It was alleged in the petition that relator was organized as a building and loan association on January 26, 1884, under the laws of this State, and that thereafter, on February 5, 1895, its corporate existence was duly and legally extended in the manner provided by law, for a period of fifty years from and after January 26, 1884; that under Section 5613, Chapter 35, relating to building and loan associations, Laws of Missouri, 1931, page 158, the corporate existence of a building and loan association theretofore or thereafter organized may be extended for such period as may be stated in its resolution of extension adopted by a vote of three-fourths of its stockholders present at any regular or special meeting called for that purpose; that under and by virtue of said section, upon the filing of a copy of such resolution with the Secretary of State, duly certified by the president and secretary of the corporation, and payment of a fee of $5 into the State treasury, the Secretary of State is required to issue a certificate for such extension; that pursuant to the provisions of said section, at a special meeting of the stockholders of relator, called for the purpose, of which notice was waived by all of the stockholders, a resolution was adopted by a vote of all of the stockholders present, extending relator's period of corporate existence perpetually; that, as provided by said section, a copy of said resolution, certified by relator's president and secretary, was filed with respondent and there was paid and tendered a fee of $5 into the State treasury; that, notwithstanding it was and is the duty of respondent to issue a certificate for such extension, and notwithstanding that relator has requested the issuance of such certificate, respondent has refused to issue the same and has demanded that as a condition precedent to the issuance thereof, relator pay a fee based upon its capital stock; that the only amount required, under the law relating to building and loan associations, to be paid by relator upon an extension of its corporate existence is the sum of $5, prescribed by said law to be paid into the State treasury, and that it was and is the duty of respondent to issue to relator a certificate of such extension.

Relator prayed "that a preliminary writ of mandamus be issued herein and the respondent be required to show cause on a day certain why said preliminary writ should not be made permanent and that, upon final hearing, a permanent and absolute writ of mandamus issue herein directing and requiring the respondent to issue to relator a certificate of extension of the corporate existence of the relator for a perpetual period and for such other and proper relief as to the court may seem just in the premises."

Respondent's return admitted the factual averments of relator's petition, but denied that it was his duty under the law to issue to relator a certificate for such extension, and stated that on the 11th day of October, 1933, he did, in writing make a request of the Attorney-General of Missouri for a written opinion as to the interpretation and constitutionality of Section 5613, Laws of Missouri, 1931, page 158, and the fees necessary for building and loan associations to pay for the extension of corporate existence; that on the 18th day of October, 1933, said Attorney-General rendered to him, in writing, his opinion, stating in substance that said section was and is unconstitutional, void and of no effect, for the reason that it is violative of Section 21, of Article X of the Constitution of Missouri, and that "the extension of the corporate existence of building and loan associations was subject to the fees as provided in Section 4556, Revised Statutes 1929, General Corporation Laws of Missouri, which provides that extension of corporate existence shall not be continued until said corporation shall pay into the State Treasury the sum of Fifty Dollars ($50.00) for the first $50,000.00 or less of capital stock and the further sum of Five Dollars ($5.00) for each additional $10,000.00 of capital stock." Respondent in said return further stated that by reason of said opinion he has refused, and still refuses, to issue said certificate of extension to relator, and for the further reason that Section 5613, Laws of Missouri, 1931, page 158, is unconstitutional, illegal, void and of no effect, and is no right or authority whatever for authorizing or justifying, and does not permit respondent to issue to relator said certificate extending the corporate existence of relator, and is violative of Section 21, Article X, of the Constitution of the State of Missouri; that said Section 5613 is discriminatory and does violence to the policy of equality; that relator is not a benevolent institution within the meaning of the law, and is not exempt from the payment of corporate fees as provided in said Section 21, Article X of the Constitution of Missouri; that acceptance of the proffered fee from relator and the issuance of said certificate of extension without the additional fees as provided in Section 4556, Revised Statutes 1929, and Section 21, Article X of the Constitution of Missouri would be a violation of the oath of office of respondent and a breach of his official bond; and that he has no legal power or authority to issue to relator said certificate of extension unless relator pays all of the fees as required in said sections. The prayer of the return is that the court deny the writ of mandamus asked for by relator.

Section 5613, Laws of Missouri, 1931, page 158, relied upon by relator, is part of "An act to repeal chapter 35 of the Revised Statutes of Missouri, 1929, entitled `Building and loan associations' and to enact in lieu thereof a new chapter to be known as chapter 35, relating to the same subject matter," and is as follows:

"Every such corporation, whether heretofore or hereafter organized, may extend the time of its duration for such period as may be stated in its resolution of extension, as adopted by a vote of three-fourths of its stockholders present at any regular or special meeting called for that purpose, and of which meeting public notice of the time, place and general purpose of such meeting shall be given in manner as provided in section 5588 of this chapter. A copy of said resolution, certified by its president and secretary, shall be filed with the secretary of state, who, upon payment into the state treasury of a fee of five dollars, shall issue a certificate for such extension, a copy of which shall be filed for record in the...