On Rehearing
This Court notes that the Bank has retained new counsel who has filed an extensive brief in support of its application for rehearing. For that reason, we feel constrained to file an extended written opinion, addressing the important points raised in the application.
The arguments urging our modification of the original opinion fall into three categories :
1. The trial Court did not consider the stockholders’ motion for summary judgment on their counterclaim for the penalty; therefore, the issue was not before this Court for review.
2. Regardless of whether the trial Court considered the stockholders’ motion, this Court erroneously remanded the cause with instructions to enter a summary judgment in favor of the stockholders because the questions of the stockholders’ “proper purpose” and the Bank’s “reasonable cause” for refusal are issues for trial, and because the stockholders did not assign as error the trial Judge’s denial of their motion for summary judgment.
3. The 10% penalty prescribed by Title 10, § 21(46), is a maximum figure, not an absolute standard; therefore, the trial Court is authorized to set the penalty on a continuum up to 10%.
We will address each of these arguments separately.
First, the record sets out the stockholders’ motion for summary judgment on their counterclaim for the penalty. The motion is accompanied by affidavits which include the stockholders’ letters to the Bank demanding inspection of books and records and the depositions of the Bank’s stockholders, president, attorney, and public relations officer. The trial Judge’s order is prefaced with the following statement: “This is a declaratory judgment and is submitted on motions by the respective parties for a summary judgment on the pleadings, affidavits and depositions on file in this case.” There is no order in the record striking the stockholders’ motion for summary judgment and whether the trial Judge, in fact, did consider the motion is not material to this Court’s review of the trial Court’s propriety in not granting it.
Where the parties have moved for summary judgment under Rule 56 and submitted supporting affidavits, which establish that there is no genuine issue of material fact, appellate courts are authorized to remand the case with instructions for entry of summary judgment. Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir. 1974). We therefore find no merit in the Bank’s first argument.
The Bank’s second argument is that determinations of “proper purpose” and “reasonable cause” were genuine issues of material fact. Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963), explains that the burden is on a corporation teCprove improper purpose; therefore, if the corporation does not question the stockholders’ purposes, there is no issue for trial. The stockholders’ demand for inspection alleged proper purposes such as inquiries into: misuse of corporate funds, the abuse of corporate office, the diversion of corporate assets to the personal benefit of any officer, director, employee or stockholder, and the favoring of certain customers of the Bank because of their personal connections with the officers or directors. The deposi*295tions of the stockholders which accompanied their motion for summary judgment set forth specific occurrences which made them suspect corporate mismanagement. Two examples of the suspected mismanagement were the Bank’s purchasing land from a board member at more than its market value and the Bank’s making.a substantial loan to a board member who could offer only a second mortgage as security.
The Bank offered no affidavits to establish improper purpose. Rule 56(e), in pertinent part, provides:
“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
The last sentence of 56(e) has been interpreted to mean that even if the adverse party files no affidavits opposing the motion, a summary judgment can be entered against him only if “appropriate.” Dawkins v. Green, 412 F.2d 644 (5th Cir. 1969). We hold that this is an appropriate case for the entry of summary judgment for two reasons. First, the president of the Bank on direct examination by the stockholders’ attorney admitted that he had no reason to believe that Mr. Miles had some purpose for asking to see the records other than to determine the way the bank had been operated. Second, 'the burden is on the corporation to prove that the stockholders’ demand is not for a proper purpose. Smith v. Flynn, supra. Therefore, if the Bank offers no evidence of improper purpose and in fact admits through its president that there is no reason to suspect improper purpose, the question of purpose is not an issue for trial.
On the “reasonable cause” issue, again, the burden rests with ’ the corporation. The trial Judge found that the peculiar fiduciary relationship between a Bank and its customers created a reasonable cause for the Bank’s refusal to permit inspection. This Court, however, reversed that finding in Ex parte Miles, 294 Ala. 462, 318 So.2d 697 (1975), holding that the inspection rights of stockholders of a bank are the same as stockholders of a corporation generally. Thus, Ex parte Miles finally resolved the question of “reasonable cause”, and that issue is not before the trial Court on remand. Since all of the triable issues —issues of law, not of fact — are resolved in this Court, the only proceeding remaining for the trial Court is to grant a summary judgment in favor of the stockholders. Millworth Converting Corp. v. Slifka, 188 F.Supp. 629 (S.D.N.Y.1960).
As to the propriety of our instructions to grant a summary judgment, the Bank argues that the issue of the trial Judge’s denial was not before this Court on appeal because it was not assigned as error. Our instruction, however, is not grounded upon a reversal of the trial Judge’s erroneous denial of the stockholders’ motion for summary judgment. Rather, our instruction is an acknowledgement that the trial Judge correctly found that there were no triable issues. Our authority for the instruction is not the rules of appellate procedure, as the Bank assumes, but rather the mandate of Rule 1 of ARCP. Rule 1 requires that the rules “shall be construed to secure the just, speedy and inexpensive determination of every action.” Since the material issues of this case have been disposed of by the affidavits of the parties, by Ex parte Miles, and by our original opinion, a trial is unnecessary.
This situation falls squarely within the purpose of Rule 56 to “improve the machinery of justice, promote the expeditious disposition of cases, and avoid unnecessary trials where no genuine issues of fact are *296raised.” 10 Wright and Miller, Federal Practice and Procedure, § 2712 (1973). Where there are no triable issues of fact, as here found by the trial Court and with which finding we agree, and the legal issue presented has been resolved against the Bank, our mandate on reversal for the entering of a summary judgment in favor of the stockholders necessarily follows.
Finally, the Bank takes issue with the latter portion of the last sentence of our original opinion: “. . . and assess against the Bank in favor of each stockholder respondent a penalty equal to 10% of the value of the stock owned by each respective stockholder.” Of the three points raised, the first two were treated, at least to some degree, in the original opinion. While, in deference to counsel’s earnest insistance, we have not considered the first two points lightly, it is this 10% penalty issue — treated only summarily in the original opinion — to which we have devoted the most time and effort in our consideration of this cause on rehearing.
We find ourselves in substantial agreement with the policy arguments advanced by counsel for the Bank that the penalty should be up to 10% with guidelines for the discretionary fixing of the amount according to the gravity and circumstances of the wrong for which the penalty is imposed. To eliminate all discretion and require the imposition of the penalty by an absolute standard, says counsel for the Bank, treats all refusals to allow inspection of corporate books and records, not sustained on “improper purpose” grounds, as equal in degree and severity. It would further encourage refusal to a relatively small stockholder as opposed to the request of a large stockholder where the risk of refusal would prohibit a contest even in legitimate “improper purpose” cases. Our prerogatives on appellate review, however, do not extend to policy making but rather to judicially interpreting the legislative policy.
The primary authority cited by the Bank in support of its proposition that the penalty statute should be interpreted as a maximum rather than an absolute standard is the case of McCormick v. Statler Hotels Delaware Corporation, 55 Ill.App.2d 21, 203 N.E.2d 697 (1964). In upholding a penalty award of less than 10% under an identical statute, this intermediate appellate court observed:
“. . . the statute says an officer or corporation, ‘. . . shall be liable . in a penalty of ten per cent of the value of the shares owned by such stockholder. . . .’ The question here is the meaning of ‘shall be liable.’ “. . . The [Illinois] Supreme Court said in that case [People v. Elgin Home Protective Ass’n, 359 Ill. 379, 194 N.E. 584 (1935)], ‘The words “may” and “shall,” when used in a statute, will sometimes be read interchangeably, as will best express the legislative intent.’ On this basis, it is possible for us to find that the imposition of a penalty rests in the discretion of the Court below.
“We can reach this same result through interpreting the word ‘liable.’ Being liable for a ten per cent penalty could mean the defendants are subject to a fine up to ten per cent of the value of the stock . . .”
We cannot accept either basis for interpreting “shall be liable . . . in a penalty of ten per cent . . .’’as permitting a discretionary penalty imposition not to exceed 10%. The interchangeability of “may” and “shall” to effect legislative intent is a sound rule; but it can be given a field of operation only where the overall expression of the legislative enactment evidences an intent and purpose contrary to the term employed. See Morgan v. State, 280 Ala. 414, 194 So.2d 820 (1967). Here, no contrary intent which permits “may” to be substituted for “shall” is manifest.
Perhaps the word “liable” could be interpreted as subject to a fine up to 10% (one *297of its secondary meanings being “likely to”) except that it is preceded by the words “shall be.” To be subject to a “likely' to” connotation, the sentence would read, “A corporation is liable to a fine of 10%.” This interpretation is precluded, however, by the phrase “shall be liable . . . in a penalty of 10%,” particularly where this is the only expression of legislative intent and its mandatory imposition is in harmony with the overall spirit of the “right of stockholders to inspect corporate records” statute.
Opinion extended and application for rehearing overruled.
All the Justices concur, except HEFLIN, C. J., not sitting.