in their charter * * *'. 12 U.S.C.A. § 1464(b). The regulations of the Board issued under the authority of the statute provide for savings accounts which constitute the capital of the corporation. In the charter and by-laws prescribed by the Board (12 C.F.R. § 544) all holders of savings accounts and all borrowers from the association are declared members and each holder of a savings account is to be permitted to cast one vote for each $ 100. or fraction thereof of the withdrawal value of his account. A borrowing member is to be permitted to cast one vote as such. No member may cast more than 50 votes. Voting may be by proxy. A majority of all votes cast at any meeting of members shall determine any question. Voting right is determined as of a specified closing date. (12 C.F.R. § 544.1). Under the by-laws prescribed by the regulations (12 C.F.R. § 544.5) annual meetings of the members are required and special meetings may be called at any time by the president or the board of directors and must be called on the written request of members holding at least one-tenth of the capital of the association. At the annual meeting of the members, directors are elected for three-year terms; approximately one third of the board is elected each year. (12 C.F.R. § 544.1). The officers are elected by the directors at their meeting next following the annual meeting of members. (12 C.F.R. § 544.5).
The charter and by-laws contain no provision for inspection or copying of the membership list by a member. Is the absence of such provision to be construed as a denial of the right of inspection? As support for its contention defendant points to a regulation that the association 'shall cause a true copy of its charter and bylaws * * * to be at all times available to the members of such association * * * and shall deliver a copy of such charter and bylaws to any member upon request.' (12 C.F.R. § 544.7). From this it is argued that application of the doctrine expressio unius est exclusio alterius requires the conclusion that the membership list is not available to the members, since the regulation speaks only of the charter and by-laws. In this, defendant suggests, there is no hardship because the regulations require the incumbent management of an association to give notice of the annual meeting either by individual notice to all the members or by advertisement. (12 C.F.R. § 544.5). Defendant asserts that plaintiff has available for his use the same means of public advertisement in a newspaper of general circulation. The doctrine expressio unius est exclusio alterius is at best an unreliable basis for ascertaining intention. Its premise is that the draftsman has made a comprehensive review of all possible related provisions, from which the inference is to be drawn that his silence indicates a discriminating judgment of rejection. Such a conclusion usually is unrealistic, for it assumes too much foresight in the draftsman. Moreover, it frequently collides with inferences that run the other way. For example, a requirement that the management keep copies of the charter and by-laws and deliver them on demand to all members, far from indicating a restriction on the right of members to information, indicates an enlargement of the customary right of inspection. It may, therefore, be said that the draftsman of the regulations added to the common law right of inspection of membership lists a special right to receive a copy of the charter and by-laws. In any event, we think more would be required than silence of the regulations to overcome the general 'common law' right of a member of a corporation to inspect and copy the membership list. The right of inspection of membership lists even in business corporations was not always provided by statute. Yet many courts were led to extend this obvious right on grounds of public policy.
In Pennsylvania, where an elaborate modern building and loan code
failed to provide for the right of inspection of membership lists it was argued that this statutory silence, when contrasted with the statutory recognition of the right in business corporations, manifested a legislative intention that building and loan association members did not have the right to inspect the membership list. The argument was rejected. 'The mere fact that the Building and Loan Code of 1933 * * * does not specifically provide that stockholders of building and loan associations shall have the right to inspect the list of stockholders, or be furnished with a list of them, will not be applied so as to deprive them of a common-law right enjoyed by stockholders of corporations generally. The Code will not be construed as limiting the rights of stockholders to those specifically enumerated, except where the intention to do so is clear.'
Public policy requires that the right of inspection by the owners of a corporation be permitted in the absence of express statutory or equivalent denial. So it was held in Pennsylvania that a stockholder was entitled to examine the books of the corporation with his attorney even though the by-laws for which the stockholder had voted provided that stockholders could only examine the books if the board of directors in their discretion authorized it. Commonwealth ex rel. Wilde v. Pennsylvania Silk Co. (No. 1), 267 Pa. 331, 110 A. 157 (1920). The same principle was applied to a building and loan association in Muro v. Elwood Becker Building & Loan Association, 20 Pa.Dist. & Co.R. 510 (1934).
The fact that federal savings and loan associations are regulated and supervised by the Federal Home Loan Bank Board is not alone sufficient to oust the right of a member to obtain the membership list.
Only by maintaining the right of inspection may the regulations of the Board itself be made effective. For only so can the right of a member to vote for directors, who in turn will elect the officers, be fully exercised. Without knowledge of the identity of his fellow members it would be idle to confer upon him the right to force a special meeting of members on the signature of members holding one-tenth of the capital of the association. For how could he go about securing the joinder of his fellow members in such a call if he had no right to learn their names from the association? Moreover, the regulation of the affairs of a federal savings and loan association by the Home Loan Bank Board does not exhaust or exclude the area in which members may have good reason to communicate with their fellow members on affairs relating to the association. They are still the ultimate owners of the association and the provisions for strict control and supervision by the Federal Home Loan Bank Board are for their additional protection. We find ourselves unable to construe these protective provisions as intended to destroy the fundamental right of inspection on which rests the means for communication among the members.
The letter from the supervisory agent of the Board does not rise to the dignity of a regulation. (See 12 C.F.R. § 508.10 et seq., dealing with the promulgation of regulations). Hence we need not consider the question which would arise if the Board by a formally adopted regulation expressly denied the right of inspection.
Nor are we led to believe that the right of inspection should be denied because making the membership list available would reveal the amount of the members' savings accounts. This is an everyday occurrence whenever there is inspection of a stockholders' list which shows the number of shares owned by each stockholder, especially in a corporation whose stock has a readily ascertainable market price. If a right of privacy of individual investors in private corporations does not bar the right of inspection the less so may it operate in the case of a corporation supervised by governmental authority. So it has been held as to banks.
So it has also been held as to state savings and loan, or building and loan associations.
No greater secrecy as to the identity and holdings of its members is required in the case of a federal savings and loan association than exists in the related cases of state savings and loan or building and loan associations or in the case of banks.
Defendant relies heavily on Daurelle v. Traders Federal Savings & Loan Association of Parkersburg, 143 W.Va. 674, 104 S.E.2d 320 (1958), where a member of a federal savings and loan association was denied the right to examine the list of members and their addresses. The decision is not binding on us and we do not find it persuasive. It is, moreover, distinguishable, because the association had already lawfully redeemed plaintiff's stock so that any right of inspection fell; and the court was influenced by a recent statute which indicated an intention to alter the previously existing common law and statutory right of inspection in West Virginia.
And now, June 28, 1963, defendant's motion to dismiss is denied.