I dissent. In my opinion the Commissioner of Corporations was not only empowered to issue the regulation in question but was under a positive duty to do so. The regulation is merely declaratory of sound accounting principles that cannot be disregarded without frustrating the very purpose of section 7 of the Industrial Loan Act to insure the; *557maintenance of a surplus as a margin of safety over the legal capital. By prohibiting charges against the statutory surplus that should properly be made against income, the regulation guards against the diversion of the surplus into dividends in violation of the act.
The regulation states: “Provision shall be made by each industrial loan company for the maintaining of current, adequate reserves for unearned interest, unearned discount, losses and doubtful accounts. The balance in such accounts shall be adjusted annually, or if dividends are paid oftener than annually such adjustments shall be made before dividends are declared. An industrial loan company shall maintain the statutory surplus required by section 7 of the Industrial Loan Act and shall not use any portion of said statutory surplus to offset bad debts, doubtful accounts or for other special! reserve accounts.” ___\
In the stipulated facts the parties have quoted only the last sentence of this regulation. The validity of any part of the regulation, however, can be determined only by a reading of the regulation in its entirety (see Weber v. County of Santa Barbara, 15 Cal.2d 82, 86 [98 P.2d 492]) and the court should therefore exercise its authority to take judicial notice of the entire regulation even though only part of it is encompassed by the stipulation. (Code Civ. Proc., § 1875(3); Drillon v. Industrial Acc. Com., 17 Cal.2d 346, 352 [110 P.2d 64] ; Parker v. James Granger Inc., 4 Cal.2d 668, 677 [52 P.2d 226]; Varcoe v. Lee, 180 Cal. 338, 343 [181 P. 223] ; Stanislaus Lumber Co. v. Pike, 51 Cal.App.2d 54, 56 [124 P.2d 190] ; Arnold v. Universal Oil Land Co., 45 Cal.App.2d 522, 529 [114 P.2d 408] ; Livermore v. Beal, 18 Cal.App.2d 535, 541 [64 P.2d 987].)|7..The prohibition of the use of the statutory surplus for offsetting bad debts, doubtful accounts or for " other special reserve accounts is an inseparable counterpart of the requirement that the companies maintain adequate reserves for losses and doubtful accounts. By maintaining adequate reserves for losses from bad debts the companies charge to income the prospective losses from bad debts and thus decrease the profits available for dividends. The prohibition of the charging of bad debts and doubtful accounts to the statutory surplus insures the charging against income of that part of the losses from these sources exceeding the re*558served amount. Thus a company cannot account for its bad debt losses by reducing the statutory surplus account; it must deduct its bad debt losses from current and future gross income and abstain from paying dividends until the bad debt-losses in excess of the special bad debt reserve are fully accounted for. If the current income is insufficient for that deduction, the ensuing - deficit must be absorbed by future income.
The requirement of special reserve accounts is merely declaratory of what in any event would be a principle of sound management of any credit institution, particularly a credit institution engaged in small loan business./By maintaining reserves for unearned income, such as interest paid in one accounting period but earned in another, the company allocates its receipts to those accounting periods in which .they are earned/^By maintaining and adjusting in each dividend period reserve accounts for bad debts and similar contingent losses, the company allocates continuously part of its gross income to losses, which are an inherent risk of the business of a credit institution. The establishment and continuous adjustment of a reserve for bad debts precludes the company’s carrying loans on its books at a higher value than that which may reasonably be expected to be realized therefrom. (See Pacific States Sav. & Loan Co. v. Hise, 25 Cal.2d 822, 836 [155 P.2d 809].) By adding to this reserve what sound business judgment demands before paying a dividend, the company allocates to each dividend period its proper share of the losses from bad debts. A company is thus precluded from making it appear that its profits for a given period are higher than the actual profits for that period and that the losses in another period are greater than they actually are for that period. The reserve method of treating bad debts prevents such debts from creating losses at haphazard at times when they must be actually charged off, by requiring deductions from gross income for such losses over the whole period of the company’s business operations. The effect of this method is to treat losses from bad debts as they would be treated under accepted accounting practice, namely, as continuous business expenses. (See Patton, Advanced Accounting, p. 18; McKinsey-Noble, Accounting Principles (rev. ed.), p. 237.)
There is a particular need for the accumulation of a reserve *559for bad debts in an enterprise where bad debts are significant in amount and frequent in occurrence. (See Mason, Fundamentals of Accounting, p. 171.) Bad debts reserves are therefore customarily maintained in credit institutions, whose principal assets are loans and whose principal business risks are losses from bad debts. (See American Institute of Banking, Fundamentals of Banking, 1943, pp. 449-450.) It is in fact the general practice of industrial loan companies to set up such reserves from earnings as part of their expenses (see Robinson and Nugent, Regulation of the Small Loan Business, pp. 223-224), in recognition of the fact that earnings in the small loan field quickly reflect losses from accounts that prove uncollectible because of changes in the personal circumstances of the borrower. (See Stone and Thomas, California’s Legislature Faces The Small Loan Problem, 27 Cal.L.Rev. 286, 291.)
If a company could conceal the inadequacy of a bad debt reserve by charging the deficiency to the statutory surplus, it could make its income appear higher than if the deficiency were charged against income, and thus create the illusion that assets in an amount equal to the losses were available for dividends. The offsetting of losses against surplus in this manner would be tantamount to using the surplus account directly for the payment of dividends. The commissioner’s regulation precluding the company from making such withdrawals in favor of the shareholders insures the maintenance of the surplus prescribed by section 7. The very terms of that section make it plain that the surplus must be built up and maintained out of the company’s income before any dividend is declared: “Before any . . . dividend is declared, not less than ten per cent of the net profits of such corporation for the preceding half-year, or for such period as is covered by the dividend, shall be carried to its surplus until such surplus shall equal the amount of paid-up capital.” This surplus is “earned surplus” created out of corporate earnings, as distinguished from “paid-in surplus” representing the excess of the price of issuance over par or stated value, or other capital surplus arising from such sources as the revaluation of assets. If, however, the statutory surplus were available for all purposes for which earned surplus is ordinarily available under the general corporation law of this state, nothing would prevent an industrial loan company from applying the surplus retained at one *560dividend period to the payment of dividends in the next period, for section 346 of the Civil Code provides that a corporation may declare a dividend “out of earned surplus.” The provisions of section 7 requiring an accumulation of surplus up to the amount of paid-up capital would be of no avail, however, if a company were allowed to undo in one period what it is required to do in the preceding period.
Industrial loan companies, like banks and other credit institutions, use funds that are for the most part furnished by others and that must be returned upon request. Statutory requirements with respect to a surplus, either to be paid up with- the capital or to be built up out of profits, are designed to insure the maintenance of a reasonable ratio between the company’s own capital and the funds of others. The maintenance of such a ratio insures the security of the enterprise when substantial amounts of credited funds are withdrawn. The Industrial Loan Act includes several provisions in addition to section 7 requiring the retention of a prescribed proportion of the company’s own funds in the enterprise. A minimum legal capital is required, ranging from $25,000 to $100,000 depending on the size of the communities in which the company transacts business. (§3.) The capital must be paid into the treasury of the company in cash, at least 25 per cent thereof before the articles of incorporation are filed and the balance at the rate of at least 10 per cent per month following the initial payment. (§ 3.) To restrict the employment of credited funds, the act provides that no epmpany may have outstanding more than ten times the amount of its paid-up capital in investment certificates. (§5(e).) The commissioner has added the provision that the amount of outstanding investment certificates shall not exceed a limitation fixed by him, if it is lower than the maximum amount allowed in section 5 (e) of the act. (Rules and Regulations, ch. 3, § 5.) Like a prescribed cash reserve of a bank, the statutory surplus is designed not as a protection against bad d.ebt losses (Allen v. Luke. 163 F. 1018, 1019), but as a permanent addition to the capital invested in the enterprise (see Chicago Title & Trust Co. v. Central Trust Co., 312 Ill. 396 [144 N.E. 165,172]), a security to the certificate holders and other creditors and to the public in addition to the required legal capital. Thus the surplus of a bank has been described as “a balance pure and simple belonging to the stockholders of the bank and *561remaining in the business in order to give depositors further assurance of the stockholders’ confidence in the business. In the banking business it has a real significance beyond that of accounting. It is a supplementary reserve to protect the bank’s depositors beyond the capital stock that may be required by law.” (Dewing, Financial Policy of Corporations (3d ed.), p. 581.) The purpose of section 7 of the Industrial Loan Act would be frustrated if charges were made against the statutory surplus that should be made against income, to create an appearance that income was available for dividends. The surplus would then in effect be distributed to the shareholders instead of being maintained as the Legislature intended, as additional security to the certificate holders and other creditors of the company.
The majority opinion assumes that the statutory surplus is a fund ostensibly to be used for absorbing losses so that an industrial loan company can meet its obligations without an impairment of its legal capital, which would subject it to the risk of seizure by the commissioner. The statutory surplus, however, is no more a fund than the legal capital, nor does the regulation prevent the use of any assets of the company to meet its obligations. Moreover, far from causing any impairment of the legal capital, the regulation protects that capital from impairment.
The Industrial Loan Act does not require an industrial loan company to maintain the statutory surplus as an earmarked fund of cash or other assets. It merely requires the company to retain a specified percentage of profits in the business until the margin of assets over liabilities equals the amount of the legal capital. " The surplus account represents the net assets of a corporation in excess of all liabilities including legal capital.” (Edwards v. Douglas, 269 U.S. 204, 214 [46 S.Ct. 85, 70 L.Ed. 235]; Randall v. Bailey, 288 N.Y. 280 [43 N.E.2d 43]; Landesman-Hirschheimer v. Commissioner of Int. Rev., 44 F.2d 521, 522; Porto Rico Coal Co. v. Domenech, 41 F.2d 183, 185; Winkelman v. General Motors Corp., 44 F.Supp. 960; see 11 Fletcher, Cyclopedia of The Law of Private Corporations, § 5335.) The statutory surplus therefore cannot be compared with liquid reserves required of a bank, which are actual liquid funds to meet requirements for cash payments when withdrawals of deposits are not bal*562anced by new deposits. (Bank Act, § 20, Leering’s Gen. Laws, 1944, Act 652.) The statutory surplus required by the Industrial Loan Act also differs from the surplus equivalent to 25 per cent of a bank’s capital required by the Bank Act. (Bank Act, § 21.) The latter must be paid in by the shareholders along with the capital. It can be absorbed by any losses, subject to the limitation that the aggregate paid-up capital plus surplus must equal the percentages of deposit liabilities specified in section 19 of the Bank Act: The shareholders of a bank, if the deposits are not insured by the Federal Deposit Insurance Corporation pursuant to the Federal Reserve Act, are liable for all debts owed by the bank to depositors and other contract creditors. (Stockholders’ Liability Act, Leering’s Gen. Laws, 1944, Act 652(a).) In the absence of a voluntarily established surplus, the statutory surplus required by an industrial loan company represents to the creditors the only margin of safety over the company’s legal capital.
The commissioner’s regulation against offsetting bad debt losses against the statutory surplus does not prevent the company from using its assets freely for any legitimate purpose. The company can offset its bad debt losses against profits voluntarily retained in the business, for such earned surplus may be used like current income. If there is not an adequate voluntarily accumulated earned surplus or adequate income against which to charge the losses from bad debts, a deficit should appear on the boobs and statements of the company to be charged against future income. Such a deficit would show that the statutory surplus was impaired, that the margin of assets over liabilities was less than the aggregate accumulations out of previous profits required as statutory surplus. So long as the deficit does not exceed the amount of the statutory surplus there is no impairment of capital. The statutory surplus thus serves to protect the legal capital from impairment. (See Mulcahy v. Hibernia S. & L. Society, 144 Cal. 219, 224 [77 P. 910].) The company is not subject to being taken over by the commissioner merely because a deficit indicates that its statutory surplus is impaired- It is not free, however, to charge the deficit against the statutory surplus account and thereby make future earnings available for dividends. The prohibition of the payment of dividends while a deficit exists is the essential legal effect of the commissioner’s *563regulation. The majority opinion withholds judgment on the question of the commissioner’s authority to require the statutory surplus to be fully restored before dividends are paid. In my opinion it is arbitrary to hold the regulation invalid without passing on that question, for the very purpose of the regulation is to insure the payment of dividends out of income and to prevent the depletion of the statutory surplus for such payments.
The majority opinion states that its holding is limited to the validity of the absolute prohibition by the commissioner of the use by an industrial loan company under any operating circumstances, of any portion of the statutory surplus “to offset bad debts, doubtful accounts, and operating losses.” There is no prohibition, however, of the offsetting of operating losses generally. The regulation disallows the use of “any portion of said statutory surplus to offset bad debts, doubtful accounts or for other special reserve accounts.” The prohibition is therefore limited to losses that should be charged against income by means of adequate reserve accounts. There is no showing that the company has been disallowed offsets against the statutory surplus account of losses that need not be charged against income. The question whether a regulation prohibiting the offsetting of such losses against the statutory surplus would be valid is therefore not involved in this case. Accepted accounting practice differentiates losses chargeable to income from other losses. It is thus not permissible to charge to “paid-in surplus” items that are properly chargeable to income. In the words of the Chief Accountant of the Security and Exchange Commission; “It is my conviction that capital surplus should under no circumstances be used to write off losses which, if currently recognized, would have been chargeable against income. In case a deficit is created, I see no objection to writing off such a deficit against capital surplus, provided appropriate stockholder approval has been obtained.” (S.E.C. Accounting Release No. 1, April 1, 1937, 3 C.C.H. Fed. Sec. Laws Service, 61,701, § 72,002; see, also, Am. Inst, of Accountants, Accounting Research Bulletin, No. 3 (1939) ; Katz, Accounting Principles in Corporate Distributions, 89 U. of Pa. L. Rev. 764, 767-768.) It is improper to charge to paid-in surplus an *564expense or loss properly chargeable to income in view of the right of the shareholders to have their investment, including the paid-in surplus, maintained. The maintenance of the statutory surplus by an industrial loan company, however, is required in the interest of the certificate holders and other creditors and of the public generally, and is therefore not dependent on the approval of the shareholders.
Since the commissioner’s regulation prescribes a rule of sound accounting practice essential to the purposes of the Industrial Loan Act, there can be no valid objection to his order requiring plaintiff to restore the statutory surplus depleted by offsets of bad debts previous to the regulation prohibiting such offsets. Plaintiff was under a duty to provide for its bad debts out of income independently of the commissioner’s regulation. By reducing its statutory surplus, it has either paid as dividends income that was not properly available for that purpose or has failed to show a deficit to be charged against future income. The depositors and other creditors of the company are entitled to the restoration of the statutory surplus. The commissioner’s order proceeds directly from his power to supervise and control industrial loan companies as to all their corporate powers (§4), and to make reasonable regulations to carry out the purposes of the act (§§ 10 and 11(a)). The statutory surplus is so closely related to the public interest and the interest of the certificate holders and other creditors, which the commissioner is charged with safeguarding, that the restoration of that surplus could not be waived by his failure to insist on its restoration on the occasion of applications by the company for the issuance of investment certificates under the Corporate Securities Act'and on the occasion of his examination of the books and records of the company.
Gibson, C. J., concurred.
Appellant’s petition for a rehearing was denied July 16, 1945. Gibson, C. J., and Traynor, J., voted for a rehearing.