Baltimore Building & Loan Ass'n v. Powhatan Improvement Co.

Roberts, J., delivered the opinion of the Court. The appeal in this case is taken from a decree of the Circuit Court No. 2, of Baltimore City, perpetually enjoining the appellants, its officers and agents, from paying, in the future, to the withdrawing members of the appellant association the ten cents per share per month, which it is contended is provided in the by-laws of the appellant shall be devoted to the operating expenses of the appellant, and that the surplus, if any, of the expense fund of said appellant, shall be treated as profits, and as such shall remain in the appellant for the benefit of the members thereof, who shall continue therein until the maturity of their stock. The question presented by this appeal is, whether the decree, from which the appeal is taken, correctly interprets the bylaws of the appellant relating to the rights of those who are denominated the withdrawing members. The appellant was incorporated on the 26th of March, 1891, under the provisions of the General Incorporation Law of this State. By an amendment of its charter, dated the 31st of January, 1893, its aggregate capital stock is declared to be “represented by such number of shares of stock, not exceeding 250,000 shares, as the members of the appellant may from time to time subscribe for, and that the par value of said shares of stock shall be $100 per share.” The appellant is engaged in a very extensive business enterprise, involving — 64 — large sums of money. It is claimed that it has sixty thousand shares in force and holds about three thousand mortgages, given to it as security for advances made on shares of the value of two millions of dollars. The question arising on this, appeal is one of importance, the disposition of which may seriously affect a large number of shareholders. The appellant from the beginning of its operation down to the filing of this bill in the Court below, a period of more than six years, has been in the habit of paying to its withdrawing members under the advice of its counsel the whole sixty cents per month paid in by them, and this it is contended by the appellant is the construction proper to be placed on the by-laws as to their just meaning and fair legal intendment, and this the appellant claims, constitutes in good faith the contract existing between the appellant and its members. The converse of this proposition is the contention of the appellees, as stated in the decree of the Court, from which this appeal is taken. Before proceeding to announce our views as to the meaning and effect of the by-laws of the appellant, which have been adopted for its management and government, it is important that we should ascertain the principles which lie at the foundation of an enterprise of this character; not so-much its declared purposes as its actual meaning demonstrated in the conduct of its affairs. From a careful examination of its charter and by-laws found in the record, it is. quite apparent that it is an association incorporated under the provisions of the Code, Art. 23, sections 95—104, inclusive, title, “ Corporations,” sub-title-, “ Building or Homestead Associations,” and is thereby entitled to exercise all the powers and attributes which property pertain to- or flow from the various provisions of the Code referred to. Its primary object is the investment of money for profit and gain, whilst its secondary effort should be its division and. distribution in such manner as to secure to each shareholder his just and fair proportion of its profits. As a mutual association based on the mutual plan it is bound to treat its. — 65 — members equally, and any by-law or contract made by it in. contravention of such mutuality would be ultra vires and void. Whilst we are of opinion than an examination of all the; by-laws must be made to ascertain their meaning and effect, we must not allow too much weight to attach to any one-alone, so that it shall unduly preponderate as against the other. The appellees in their brief assert that, “The whole-contention of the withdrawing members is based upon these words in section 2 of Art. VI: ‘ And the holder thereof will be entitled to receive the amount paid on such shares, less the admission fee, together with interest thereon, at the rate of six per cent, per annum? and while they admit that these words must be interpreted in connection with other provisions of the by-laws, they maintain that there are no other provisions which qualify or restrain what they insist is their natural and primary meaning.” As illustrative of the effect of the appellees’ contention, we submit the following calculation based upon the theory advanced by the learned counsel who presented the appellees’ case to this Court in a most ingenious and forcible argument. Take for consideration ten shares of stock in the appellant association, which had been withdrawn at the end of the first year, as follows : Admission fee, $1.00 per share................. $10.00 Amount paid on ten shares for 12 months........ 72.00 Total amount paid in..........................$82.00 In withdrawing the admission fee is retained.......$10.00 . Appellees claim that on a proper construction of bylaws ten cents per share per month on monthly payments on stock should be retained...........$12.00 $22.00 Amount of principal due withdrawing member.....$60.00 Interest at six per cent, for average time.......... 1.80 — 66 — Total receipt.......'..........................$61.80 Without taking into consideration interest not allowed on amount paid in, the loss is................ 20.20 $82.00 Hence it follows, as shown by this statement, that the withdrawing member loses on each ten shares of his stock the sum of $22.00. It may be as well for us at this point to revert to the fact, heretofore mentioned, that from its inception, and so far as the record discloses, down to the present period, the appellant has not in a single instance retained “ ten cents per share per month from the monthly payments on stock,” but has always paid the holder of stock, that which by the express terms of Art. VI, sec. 2 of the by-laws, “ the amount paid on such shares, less the admission fee, together with interest thereon at the rate of six per cent, per annum,” and this the by-law says in terms “ he will be entitled to receive.” But it is contended by the appellees that as against this construction stands section 3 of Art. VIII, which reads : “ The payments on each share shall be sixty cents per month for each and every month until maturity, or withdrawal of stock, commencing the month following that in which the certificate is dated. Fifty cents per month per share shall be paid into the loan fund, and ten cents per month shall be devoted to operating expenses,” and sections 1, 2 and 3 of Art. X, which read, “the receipts of this association shall be divided into two classes, which shall be known respectively as the Loan Fund and Expense Fund. The expense fund shall consist of all admission, transfer fees, together with ten cents per' share per month from the monthly payments on stock, five dollars per share on paid-up stock during the first year, and $2 per share each thereafter, and this fund so constituted shall be devoted to the payment of operating expenses. The loan fund shall consist of all receipts which do not go to the expense fund, as hereinbefore provided. ’ ’ In contrasting these several sections — 67 — of the by-laws with sec. 2 of Art. VI, which reads as follows : “ Shares upon which six monthly payments shall have been made may be withdrawn by giving thirty days notice, and the holder thereof will be entitled to receive the amount paid on such shares, less the admission fee, together with interest thereon, at the rate of six per cent, per annum for average time,” there is to be found manifest .inconsistency. In determining the rule of construction proper to be applied here is a question by no means free of difficulty, yet when you compare the language of sec. 2, Article VI, which is clear and explicit, without qualification or condition, with the phraseology of section 3 of Article VIII, and of sections 1, 2 and 3 of Article X, the first named expressly declares what the withdrawing member is entitled to receive; the other sections provide only for the various funds and the uses to which they are to be applied. It is an admitted fact that it has been the usage of the appellant in paying to a withdrawing member the amount “which he was entitled to receive,” to pay him the whole sixty cents per month paid in by him. The by-laws were framed by those who were the promoters and original members of the appellant, among whom it is alleged were the appellees, and now after the expiration of six years, the by-laws having received but one construction and undergone no change in their phraseology, it is proposed to give to them an entirely different meaning. We apprehend that there can be but small doubt as to the object which is now sought to be attained. The “Agreed statement of facts ” says, “ The amount of the ten cents expense fund repaid to the withdrawing members since the organization of the company is $98,482.31. Had this amount been retained it would be an asset of the association and would have been devoted to the maturing stock.” It appears to be a conceded fact that the appellant is a solvent, prosperous and money-making concern, which, notwithstanding it has paid out to withdrawing members since its incoration nearly one hundred thousand dollars, without impairing the success of the enterprise, we are forced to the — 68 — conclusion that its organizers were well informed as to the proper methods to be adopted and followed to protect it from financial disaster and secure for it successful operation. It is a canon of construction often applied in the ascertainment' of the meaning of statutes which is equally applicable here, “ that the design and intent of the framer, when it can be ascertained, must prevail.” When you contrast the two theories, that of the appellant with that of the appellees, you cannot fail to recognize the fact that this controversy finds apt illustration in the statement which we have made and is found ante p. 65 of this opinion, and demonstrates clearly the more equal and fairer distribution of the funds which have been accumulating for the benefit of all its members. If the appellant can be managed in the future as it has been during the past six years under the construction of its bylaws as contended for by the appellant, there can be no reasonable expectation that the non-withdrawing members will be called upon to assume more than their just share of responsibility. (Decided January 5th, 1898). For the reasons assigned, we think there was error in the passage of the pro forma decree appealed from, and it is hereby reversed, and the bill of complaint dismissed. Decree reversed and bill dismissed.