Mark Twain Cape Girardeau Bank v. State Banking Board

528 S.W.2d 443, 1975 Mo. App. LEXIS 1709
CourtMissouri Court of Appeals
DecidedJune 17, 1975
DocketNo. 35928
StatusPublished
Cited by9 cases

This text of 528 S.W.2d 443 (Mark Twain Cape Girardeau Bank v. State Banking Board) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443, 1975 Mo. App. LEXIS 1709 (Mo. Ct. App. 1975).

Opinion

CLEMENS, Presiding Judge.

Plaintiff Mark Twain Cape Girardeau Bank (the proposed bank) appeals from defendant State Banking Board’s (the Board) denial of its application for a bank charter.

The proposed bank’s incorporators are seven individuals and Mark Twain Bancs-hares (Bancshares), a holding company subscribing to 90 per cent of the proposed bank’s stock. The Commissioner of Finance conducted an ex parte investigation and issued the charter. Thereafter, existing banks in Cape Girardeau, and others, appealed to the Board. Testimony during the Board’s extensive hearings primarily concerned Cape Girardeau’s commercial life, services rendered by existing financial institutions, and probable economic effects of another bank.

The Board made these findings of fact based on substantial evidence:

a. Cape Girardeau, population 31,282, and the immediate surrounding area are expected to maintain a slow, steady growth.

b. Cape Girardeau presently has three commercial banks, each with nearby “facilities” either in operation or authorized: The Farmers and Merchants Bank; the First National Bank, affiliated with the First Union Group of St. Louis; and Cape State Bank and Trust Company, in the process of affiliating with Mercantile Bancshares Corporation of St. Louis.

c. Cape Girardeau presently has three savings and loan associations, thirteen finance companies and two credit unions.

d. The above-mentioned financial institutions compete vigorously with each other.

e. The existing banks and financial institutions adequately provide for the convenience and needs of the community served by them.

f. A new bank in Cape Girardeau would impede the established banks’ expansion plans, slow their growth and hinder their ability to compete.

[445]*445g. It is not clear that a new bank in Cape Girardeau would be financially successful.

h. The Bancshares holding company was formed for the purpose of acquiring ownership and control of banks in Missouri; its present purpose is to organize banks it would own and control.

i. Bancshares was the primary organizer and applicant for the Proposed Bank’s charter, and Bancshare’s activity is an attempt by a holding company to organize a bank, as distinguished from an acquisition of or an affiliation with an existing bank.

j. Bancshares is the principal and primary party applicant in that it owns over 90 per cent of the stock in the proposed bank.

Based upon the above findings of fact the Board reached several conclusions of law: 1. The proposed bank did not sustain its burden of proving that the convenience and needs of the Cape Girardeau community presently warranted the opening of a new bank in Cape Girardeau. 2. Granting the proposed charter would violate Chapter 362, V.A.M.S., statutory prohibitions against branch banking. 3. Mark Twain Bancs-hares, Inc., was not and is not a “person” who may apply for a bank charter within the meaning of the applicable Missouri statutes contained in Chapter 362, V.A.M.S.

Based upon its findings and conclusions, the Board revoked the Commissioner’s order, and the proposed bank petitioned for review in the circuit court. The circuit court adopted the Board’s findings and conclusions and entered judgment against the proposed bank. It now appeals, contending the circuit court erred in ruling that (a) the needs and convenience of the Cape Girar-deau community do not require a new bank; (b) granting the charter would violate statutory prohibitions against branch banking; and (c) Bancshares is not a “person” who by statute may apply for a bank charter.

We have considered each contention of error. We find the circuit court’s judgment on the third contention correct, and we therefore affirm the judgment denying the proposed bank’s charter.

The proposed bank correctly notes that RSMo, § 362.015 requires that a bank be incorporated by “five or more persons.” It argues that even if we interpret “persons” to mean “natural persons,” the statutory requirement was fulfilled by the presence of seven “natural persons” who were also incorporators. We disagree. Bancs-hares was the “real” applicant for the charter. It was to hold 18,150 of the 20,000 shares of the proposed bank. A Bancshares officer signed the proposed bank’s application on behalf of Bancshares and as “attorney-in-fact” for the seven individual incor-porators. Bancshares alone paid all incorporation fees. All correspondence with the Commissioner of Finance concerning the charter application issued from or was directed to Bancshares, without reference to individual incorporators of the proposed bank. The real and primary applicant for the charter was Bancshares; if it is not a qualified incorporator, the seven individuals’ ten per cent contribution of capital was plainly inadequate for incorporation.

The critical question, therefore, is whether Bancshares is a qualified incorpo-rator of a banking corporation, i. e., a “person,” under § 362.015. We hold it is not. Bancshares is a general business corporation and may not incorporate another general business corporation, since § 351.050 requires such incorporators to be “natural persons.” Chapter 362, which specifically covers banking corporations, states merely that banks may be incorporated by “five or more persons.” § 362.015, RSMo. Thus, Chapter 351 explicitly precludes a corporation from being an incorporator, and Chapter 362 does not specifically authorize it.

Two sections of the banking statutes are pertinent. § 362.015 reads: “2. When authorized by the finance commissioner as provided in Section 362.035 any five or more persons who shall have associated themselves by articles of agreement, in [446]*446writing, as provided by law, for the purpose of establishing a bank or trust company may be incorporated under any name or title designating such business.” (Our emphasis).

Also pertinent is § 362.030, which declares the Commissioner of Finance “. shall cause an examination to be made to ascertain . . . whether the character, responsibility and general fitness of the persons named in the articles of agreement are such as to command confidence and warrant belief that the business of the proposed corporation will be conducted honestly and efficiently . . .”

Neither of these sections specifically empowers a general business corporation to incorporate a bank. And the context of neither section supports a clear inference of that power. Bancshares asserts it has such power by virtue of the statutory definition of “person” in § 1.020, RSMo: “As used in the statutory laws of this state, unless otherwise specially provided or unless plainly repugnant to the intent of the legislature or to the context thereof: .

“(7) The word ‘person’ may extend and be applied to bodies politic and corporate, and to partnerships and other unincorporated associations.” (Our emphasis).1

We note that § 362.015 provides that five or more persons may be incorporated as a bank, and that under § 1.020(7) the word “person” may be applied to a corporation. We read the word “may” as permissive in both contexts. Bloom v. The Missouri Board for Architects, Professional Engineers and Land Surveyors, 474 S.W.2d 861[1] (Mo.App.1971).

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528 S.W.2d 443, 1975 Mo. App. LEXIS 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-twain-cape-girardeau-bank-v-state-banking-board-moctapp-1975.