Opinion
Submitted on briefs April 26, 1928
Affirmed September 25, 1928 Rehearing denied December 18, 1928
From Marion: L.H. McMAHAN, Judge.
For appellant there was a brief over the names of Mr. James L. Conley and Messrs. Jaureguy Tooze.
For respondent there was a brief over the names of Mr. I.H. Van Winkle, Attorney General, and Mr. J.B. Hosford, Assistant Attorney General.
In Banc.
This appeal is from a decree dismissing the action. Plaintiff brought this action to compel defendant, who is corporation commissioner, to approve a by-law adopted by plaintiff and to prevent defendant from canceling or revoking plaintiff's license because it insists in using in its advertisements the following phrase: "Controlled and Supervised by the State of Oregon." The by-law adopted by plaintiff and disapproved by defendant reads as follows:
"Section 1, Article 4 — Any member whose stock is not delinquent and which has not been declared forfeited, or whose shares of stock are not pledged upon a loan, may withdraw from membership at any time after twelve (12) months from the date of the first payment on his or her stock and after twelve monthly payments have been made thereon (if installments) by giving thirty (30) days' written notice to the Secretary of the Association of his intention to do so. The member shall thereupon surrender his pass book or stock certificate representing the shares of stock so withdrawn and shall receive all payments of installments made thereon, together with the net dividends earned, if any. Waiver of withdrawal notice may be made by the Board of Directors if deemed advisable and the finances of the Association so permit."
Two questions are presented by the appeal, namely: (a) Has a building and loan association the right under our statutes to pay back to members voluntarily withdrawing a portion or all of the membership fees theretofore paid by the members under such terms and conditions as the association may prescribe? (b) Has a building and loan association the right to advertise that it is 'Controlled and Supervised by the State of Oregon?' We will consider these questions in inverse order. AFFIRMED.
Plaintiff insists upon its right to advertise that its affairs are " controlled" and "supervised" by the State of Oregon, but "kicks like a bay steer" when the state exercises that right through the proper official. It is here trying to prevent the state from controlling or supervising the adoption of a by-law or to control or supervise its advertising. The statute directs the corporation commissioner through an assistant "to supervise, inspect and examine all building and loan * * associations doing business in the State of Oregon," etc. It does not assume nor authorize any official to control plaintiff or any other building and loan association. A bank examiner does not control a bank's affairs as plaintiff apparently claims: Gen. Laws 1925, Chap. 207; 1 Or. L. Supp. 1342, § 18; Or. L., § 6937, as amended by Chap. 186, Gen. Laws 1927; 1 Or. L. Supp. 730.
Plaintiff claims authority to adopt the by-law by virtue of Or. L., Section 6925, as amended by Chapter 186, Gen. Laws 1927; 1 Or. L. Supp. 725. It relies expressly on the subdivision of that section reading as follows: "To permit members and investors to withdraw part or all of their deposits and prescribe the terms and conditions of withdrawals." Plaintiff also cites:
"All the moneys received by any association organized under and governed by this act shall be considered deposits." Or. L., § 6952.
The language of these excerpts taken alone will bear the construction placed thereon by plaintiff. Section 6925 authorizes plaintiff to permit members and investors to withdraw their deposits. Section 6952 prescribes " All the moneys received by any association * * shall be deposits." But these sections must be construed with other sections of the statute, particularly Section 6933. An elementary rule of construction is to consider and weigh all the sections, sentences, phrases and words of a statute together to ascertain the intent of the legislature when the statute is ambiguous, conflicting or uncertain in its terms. Plaintiff cites in support of this rule: Astoria v. Kozer, 124 Or. 261 ( 264 P. 445); Hartley v. Sherman County, 119 Or. 586 ( 250 P. 741); James v. City of Newberg, 101 Or. 616 ( 201 P. 212); Or. L., § 715.
From 1895 to the present time our statute has prescribed:
"If said stock is not more than two years old, all amounts paid in by such members upon such stock, except the sums paid as membership fees and fines, * *." Gen. Laws 1895, p. 107; Or. L., § 6933 as amended by Gen. Laws 1927, Chap. 186, p. 215; 1 Or. L. Supp., p. 729.
This is a legislative enactment fixing the manner of determining the value of shares when a member or investor voluntarily withdraws prior to the maturity of his shares or investment.
The legislature made very emphatic its purpose to forbid return of fees and fines to voluntary withdrawals. The original act forbad return of money set apart for expenses. The only change in regard to withdrawals made by the amendments of 1927 was the elimination of the words "and the amount of such payments set apart by said associations as an expense fund, which expense fund, however, shall not exceed the amount fixed by this act." The omission of those words, and retention of the words, "If said stock is not more than two years old, all amounts paid in by such members upon such stock, except the sums paid as membership fees and fines," indicates unmistakably the intention of the legislature to prohibit return of fees and fines to those who withdraw. The will of the legislature is conclusive and supreme on that matter.
It should not be necessary to cite authorities to the effect that any corporation, a creature of the state, can supersede the laws of the state, its creator. By giving effect to all the provisions of the statute bearing on the subject under consideration we hold that the part of said Section 6925 cited above authorizes defendant to provide for such voluntary withdrawals in subordination to said Section 6933. A building and loan association has authority to formulate and adopt by-laws, but such by-laws must "be in conformity with the provisions of this act and the laws of this state * *." Or. L., § 6928. The by-law involved is not in conformity with said Section 6933. Said Section 6933 is as much a part of the act as are said Sections 6925 and 6952. All these sections are of equal force, but the authority of plaintiff to adopt by-laws is subordinate to all of said sections.
The provision excepting fees and fines from the amount of withdrawal is not for the benefit of the association in its corporate capacity, but rather for the benefit of the members and investors of the association. The corporation, therefore, cannot waive the benefit of the law which requires it to withhold fees and fines from one who withdraws. One cannot waive a statutory right when to do so would injure others. To permit withdrawal of fees and fines would to that extent reduce the profits of the members and investors: 27 R.C.L. 906, 907; Brooks v. State, 3 Boyce (Del.), 1 (79 A. 790, Ann. Cas. 1915A, 1135, 1144, 51 L.R.A. (N.S.) 1126, 1139); Northern Pac. R. Co. v. Raymond, 5 Dak. 356 (40 N.W. 538, 1 L.R.A. 732).
The decree is affirmed. AFFIRMED.