The opinion of the court was delivered by: FREEDMAN
This is a motion to dismiss under Rule 12(b) on the ground that the complaint fails to state a claim upon which relief can be granted. An affidavit in support of the motion was filed after the argument and we shall therefore treat the motion as one for summary judgment under Rule 56(b).
The action was instituted in the Court of Common Pleas of Lehigh County and was then removed by the defendant to this court.
The defendant is a federal savings and loan association, incorporated under § 5 of The Home Owners Loan Act of 1933, as amended (12 U.S.C.A. § 1464), and maintains a place of business in Allentown, Pennsylvania. It received its charter from the Federal Home Loan Bank Board, an agency of the United States of America.
Plaintiff is the guardian of the estate of a minor by appointment of the Orphans' Court of Carbon County. Some time in February 1962 he became a member of the association by opening a savings account and making a deposit therein of $ 3,000.
On August 28, 1962, plaintiff made a written request, inter alia, for a list of names and addresses of all members of the association.
He received no reply to this letter. On September 12, 1962, plaintiff again requested a list of the members of the association. On the same day defendant refused the request, stating that the information was confidential and defendant was not permitted to reveal it. Plaintiff therefore seeks to have defendant required to deliver to him its books and records containing the list of members and their addresses, or, in the alternative to permit him to copy the list of the members, their addresses and the number of their shares, at such times as may be reasonable and will not interfere with the defendant's normal business activities. Defendant's affidavit avers that it refused to furnish the information sought because its by-laws prescribed by the Federal Home Loan Bank Board do not provide for such disclosure to members and further because it was advised by the Board that the information was confidential and should not be released. In support of the affidavit there is attached a letter from a supervisory agent of the Federal Home Loan Bank Board confirming it to be the Board's view that information pertaining to those who hold savings accounts in an association should not be publicly disclosed because it involves a confidential relationship between the association and its members.
It is a familiar principle, deeply imbedded in general corporation law, that a shareholder of a corporation, as one of the owners, has the right to examine the books and records of the corporation at a proper time and for a proper purpose. In many States this principle has received statutory recognition, but such statutes are generally held to be declaratory of the common law right of inspection.
The right to examine the stockholders list is a basic privilege of every stockholder of a corporation and should be given the widest recognition as fundamental to corporate democracy. It is much narrower in scope and more freely granted than the right to pore over the records of the financial and business transactions of the corporation whose management the stockholders entrust to the officers and directors.
Defendant does not question the general rule. Its motion to dismiss relies upon the nature of a federal savings and loan association. It claims that such associations are federal instrumentalities governed exclusively by federal statutes, rules and regulations, and since they make no provision for a member's inspection of the membership list, the right does not exist. In support of this contention defendant asserts that any such right is unnecessary because of extensive governmental supervision, and in any event is concluded by the advice or determination of the Federal Home Loan Bank Board to that effect.
A federal savings and loan association is without doubt an instrumentality of the United States.
Assuming that State law, under which the right of inspection is clear,
does not apply,
does the federal law governing these associations reveal that what has been described as a 'common law' right of inspection,
has been intentionally denied to their members?
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 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 ...