The majority opinion correctly and succinctly states the facts in this case; however, as my appreciation of the law leads me to a different conclusion, I must respectfully dissent.
Paragraph 1 of section 39 of Act 250 of 1928 reads as follows:
"1. Annually on or before the first day of February in each year it shall be the duty of the President, Treasurer, or other proper officer, or of any two directors of every corporation, to make and sign a report to the Secretary of State, stating specifically, the following facts:
"(1) The post-office address of its registered office;
"(2) The names and post-office addresses of its resident agents;
"(3) The post-office address or addresses of its place or places of business within or without this State;
"(4) The names and post-office addresses of all of its directors and officers and when the term of each expires;
"(5) Its capital stock;
"(6) The number of shares of each class of its authorized capital stock, and the par value, if any, of each class;
"(7) The number of shares of each class actually allotted;
"(8) The number of shares of each class actually issued;
"(9) The date appointed for the next annual meeting of its shareholders for the election of directors."
The above paragraph makes it the duty "of the President, Treasurer, or other proper officer, or of any two directors of every corporation, to make and sign a report to the Secretary of State, stating specifically, the following facts." The language is clearly mandatory. The pertinent part of paragraph 2 of the same section of the statute reads: "* * * Every corporation organized under *Page 166 the laws of this State, and every foreign corporation doing business in this State, shall once in every calendar year, upon the request of any shareholder of record, send to such shareholder, by mail addressed to his last known address, a report made and verified by the president or vice-president and secretary or assistant-secretary, containing the information hereinabove required to he contained in the last annual report of the corporation preceding said request."
In my opinion, the intent and purpose of this provision was to protect the investing public by guaranteeing to it direct, accurate information relative to the affairs of the corporations in whose stocks it had invested, verified by the proper officers of the corporation. The statute carefully and specifically sets forth the information to be contained in the report, and does not even require that the request of the shareholder be made in writing. Large corporations have thousands of shareholders, many of whom are illiterate and without the means of obtaining legal advice. To hold that such persons shall point out to the corporate officers wherein the report is lacking in the requirements of the statute is, in my opinion, to defeat the purpose of the legislation. Perhaps such persons could not understand the report after receiving it. The law, however, cannot supply intelligence, but it can and does seek to protect in so far as possible those in whom this quality is lacking. It will be noted that the report to the secretary of state is only required to be signed, but that to the shareholder is required to be verified. This is further evidence of the protection sought to be given the shareholder by the statute.
The report furnished in this case was neither signed nor verified, and to deny the relief sought is to hold that such a document is in compliance with the act. As I see it, the terms of the section do not admit of substantial compliance, and omission of any of the specified requirements does not satisfy the statute.
While it is true that, to hold the corporate officers to the penalty prescribed by the act, the request must be made in writing and fifteen days must elapse therefrom, this is not a prerequisite to a suit for mandamus to compel the furnishing of the report. In fact, the admission of the request for the report in the answer is sufficient ground upon which to make the alternative writ of mandamus peremptory. I quite agree with the reasoning of the majority in so far as the assessment of the penalty is concerned, but that is an entirely different matter. As our courts have held repeatedly that the exception of vagueness does not lie as to facts peculiarly within the knowledge of the exceptor, so the plea as to the failure of the shareholder to specify wherein the report is lacking does not lie as to the corporate officers, whose mandatory duty it is to make, verify, and furnish the report upon request, and who are peculiarly situated as to know what should be contained therein.
I share the view of our learned brother below, and respectfully dissent from the majority opinion of this court.