ON MOTION FOR REHEARING. To the end of showing that we have erred in construing the statute involved in this case, the defendant, on motion for rehearing, has reargued with much earnestness the propositions presented in its original brief. We are not convinced, however, that our Legislature intended, in the enactment of this statute, to vest in a mere ministerial officer, or appointee, having no judicial powers, and to whom judicial powers may not be lawfully granted or delegated, the power to preclude a private citizen from resorting to the courts for the protection of his private property rights, or to seek a remedy for his private wrongs. As to the merits of the individual case before us, as the merits may be made to appear upon a proper hearing before the chancellor, we know nothing, and say nothing. But we do say there is a principle involved of the gravest import, affecting the right of the citizen to have his day in court. It may be conceded that the right to move to dissolve a building and loan association or to forfeit its charter belongs exclusively to the sovereign, but this does not mean that a mere ministerial officer, or appointee, has the power to close the doors of the courts to a citizen seeking redress of his private wrongs, or the protection of his private property rights. Surely, such an officer, shown to be in fraudulent league with the officers of the loan association whose wrongs are complained of, has not such power. We do not think the statute was enacted for the protection of building and loan associations, but was enacted for the protection of the citizen against the wrongful conduct of such associations. But, if the statute was enacted for the protection of such associations, surely an association, whose officers have entered into a fraudulent arrangement with the Finance Commissioner for the purpose of shielding such association from being molested by the courts in its wrongful conduct of its affairs, is not entitled to such protection. The association cannot take shelter under the statute, when it has entered into collusion with the finance commissioner to enable it to violate the statute with impunity, and thus shield itself from the consequences of the very wrongs the statute was enacted to prevent. This view is amply supported by the authorities. [Richmond v. Irons, 121 U.S. 27; Grout v. First National Bank, 48 Colo. 557; King v. Pomeroy, 121 F. 287; Wallach v. Billings, 161 Ill. App. 317; Wallach v. Billings,244 U.S. 659; Irons v. Manufacturers' National Bank, Fed Cas. 7068; Cogswell v. Second National Bank, 76 Conn. 252; The Merchants' and Planters' *Page 339 National Bank v. The Trustees of Masonic Hall, 63 Ga. 549; Watkins v. National Bank, 51 Kan. 254; Elwood v. Greenleaf First National Bank, 41 Kan. 475; Koch v. Missouri-Lincoln Trust Co. (Mo.), 181 S.W. 44; Union Savings and Investment Co. v. District Court of Salt Lake County, 44 Utah, 397; Kroeger v. Garkie (Mo. App.), 274 S.W. 478; White v. Poole (Mo. App.), 272 S.W. 1021; Maloney v. Real Estate, Building and Loan Assn., 57 Mo. App. 384; United States Building and Loan Assn. v. Silverman, 85 Pa. 394; State v. Flitcraft (Mo.), 36 S.W. 675; Dill v. Supreme Lodge, Knights of Honor, 226 F. 807; Pritchard v. Norton,106 U.S. 124; Baltimore Ohio Southwestern R. Co. v. Reed,158 Ind. 25; West v. Jaloff, 113 Or. 184.] Many other authorities might be cited, but these ought to suffice.
It may be refreshing to call attention, at this time, to certain pertinent constitutional provisions.
Section 10 of Article 2 of our Constitution provides as follows: "The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and right and justice shall be administered without sale, denial or delay."
Section 30 provides that, "No person shall be deprived of life, liberty, or property, without due process of law."
Section 1 of the Fourteenth Amendment provides that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
The same principle is embodied in the Magna Carta, extorted from King John at Runnymede centuries ago, as follows: "To no one will we sell, to no one will we refuse or delay, right or justice."
The statute should be so construed, if so it may be, that it will not be invalidated for running counter to constitutional guaranties.
Defendant says that all the cases that have dealt with statutes similar to ours have held that the right and duty to bring suits such as this are exclusive in the State official. Yet, not a single case has been brought to our attention wherein a State official was permitted to preclude a private suitor from resorting to the courts under facts and circumstances such as are alleged in the petition in this case.
Defendant further argues that our statute was intended to close the floodgates to suits of private individuals againstquasi-public institutions, such as banks, insurance companies, and building and loan associations, and that the opinion in this case opens wide these floodgates, so that the very existence of such institutions will be thus imperiled. This is a strange doctrine. Cannot the courts, in the *Page 340 exercise of their judicial powers, be trusted to protect these institutions against ill-advised suits, so that a mere ministerial officer, or appointee, must be clothed with power to oust the courts of their jurisdiction, and to preclude private suitors from resorting to the courts for the redress of their private wrongs, or the protection of their private property rights, and that, too, without even so much as the poor privilege of a hearing before such officer?
Defendant further insists that plaintiff, instead of bringing this suit, ought to have brought a mandamus suit to compel the Commissioner of Finance to act in the premises, if he refused to act, and that redress could have been promptly had by such mandamus suit. We are not aware of any principle of law or justice that would require a private suitor to commit the prosecution of his suit to an official who is not only unwilling to prosecute the suit, but who is moreover in collusion with the party whose wrongs are complained of.
We are not impressed by the suggestion of defendant that, under our opinion, the statute may be emasculated or set at naught by the simple process of making allegations on paper such as are made in the petition in this case. Courts do not ordinarily act on mere allegations, but they require allegations to be proved.
Defendant seems to have conceived the notion that the character of the petition must be determined by the prayer for relief, and that all the relief prayed for, or none, must be granted. Of course, this is not the rule. If the allegations justify any of the relief prayed for, the petition is not demurrable.
The Commissioner recommends that the motion for rehearing be overruled.