State ex rel. Doyle v. Laughlin

Smith, P. J. — This is a proceeding by mandamus. The relator is a private banker (section 2763), carrying on the business of banking in the village of Rockville, Bates county, and the respondents are the directors and three of whom are the executive officers of the Bank of Rockville, a corporation organized under the provisions [546] of article 7, chapter 42, Revised Statutes, also carrying on a like business in the same village. The capital stock of the said incorporated bank is $10,000 divided into one hundred shares of $100 each, and of which stock the relator is the owner of twenty-five shares. The relator as such stockholder requested of the respondents, as directors and officers of said bank, the privilege of examining the books of said bank for the sole purpose of acquainting himself with the condition of its affairs and how the same was managed, which request was refused the relator by respondents on the ground as we are informed by their return to the alternative writ that the said bank occupies such a confidential and trust relation towards its customers and depositors that it would be a breach of duty on the part of respondents to open up the books of the bank for the inspection by the relator. The right of a stockholder to examine and inspect all the books and records of a corporation at all seasonable times and to be thereby informed of the condition of the corporation and its property is a common-law right. Cook on Stock, Stockholders & Corporations, sec. 511; Angell & Ames on Corporations, sec. 681; Lewis v. Bernard, 53 Vt. 519; Commonwealth v. Phoenix Iron Co., 105 Pa. St. 111; Huylar v. Cattle Co. 40 N. J. Eq. 392; Boderick v. Wilson, 8 Baxt. (Tenn.) 108; Banger v. Cotton Press, 51 Fed. Rep. 61; Martin v. Boonville Oil Works, 28 La. Ann. 204; Boone on Law of Banking, sec. 235. And the existence of this right under the common law has been fully recognized in this state. Bank v. Hunt, 76 Mo. 439; State ex rel. v. Railroad, 29 Mo. App. 301; State ex rel. v. Sportsman’s Park Ass’n, 29 Mo. App. 326. There is no provision of the statute in relation to corporations that in any way impairs this right. On the contrary the right of a stockholder in an incorporated manufactur [547] ing business company is expressly declared by statute to exist. Revised Statutes, sec. 774. But the respondents contend, that section 2503, Revised Statutes, which provides that the books in which transfers of stock are registered and the books containing the names of the .stockholders shall be kept for their inspection during business hours for twenty days previous to the ■election of directors, is a limitation on the stockholder’s right of inspection. In support of this contention respondents invoke the application of the principle of the maxim, expressio unius est exclusio alterius. If this .statute was in derogation of the common law instead of declaratory of it as is the case, or, to state the matter in another way, if the common law denied the right of inspection by the stockholder, then the statute would be in derogation of it and the rule of construction for which the respondents contend would be applicable. ■The further contention of the respondents, that section 7448, Revised Statutes, which provides that no one shall be director in more than one bank at the same time nor ■ owner of capital stock in a private bank and director in another bank at the same time, is a provision by which the lawmakers intended to protect and preserve the secrets necessary and incidental to the successful management of the banking business, is wholly without force. These statutory prohibitions it is plain to be •seen do not in anyway encroach upon the stockholder’s common-law right of examination. The two are not inconsistent. It is quite obvious therefore that the relator has a ■clear right to examine the books of the bank in question. And though the relator in his application for the alternative writ took the precaution to state the purposes for which he sought to exercise the right of inspection, this upon principle we think was unnecessary. .If the right of inspection of the corporate books exists, [548] whether under the statute or at common law, the purpose of the exercise of the right is immaterial. State ex rel. v. Sportsman’s Park, 29 Mo. App., supra. Because the right may be made the subject of abuse does not prove that it does not exist. The manner in which it may be exercised might well be regulated by the by-laws of the corporation. Such regulations would, of course, have to be reasonable. The right could not be regulated out of existence. The ground of the refusal of the relator’s request as set forth in the respondents’ return, in our opinion, constitutes neither justification nor excuse therefor. The duty of the directors and executive officers of a bank, under the law as we have stated it to be, is to permit the examination of the books of the bank upon proper and reasonable request of the stockholder. The right of the stockholder and the duty of the directors and executive officers are correlative. What is the /ight of the one to have is the duty of the other to yield. It results that the trial court erred in overruling the relator’s demurrer to the respondents’ return, and in giving judgment thereon for the respondents. The judgment will therefore be reversed and the cause remanded. All concur.