*1 or- in The circuit court’s and affidavits were filed 1977. May 17, granting summary judgment on was entered der being appeal a more four little than 1977. This decided years purchase completed. In the house was after the light answers, depositions, complaints, two the two period, motions, appeal, four-year time and the justice obviously that the ends of court does not believe by granting plead plaintiffs leave would served Insurance for third Wilson v. Continental time. over 310, 326, (1979). Co., 274 N.W.2d 87 Wis.2d majority. I result reached concur (Incorporated), Bankers Wisconsin Association corporation, on of mem nonstock behalf its Wisconsin banking bers, Bank, and Kilbourn State a Wisconsin Bank, association, and State a Wisconsin Grafton banking association, on behalf of all state
federally Wisconsin, banks charted
Plaintiffs-Appellants-Petitioners, Wisconsin, Association Mutual & Loan association, a Wisconsin & loan Defendant-
Respondent.† Supreme Court May Argued February 6, 1980. Decided 1980. No. 77-347. (Also 869.) reported N.W.2d denied, costs, Motion for reconsideration with 1980. June † *3 by appellants-petitioners For the there were briefs Brody, Shriner, Bugge, P. James Lawrence Thomas L. J. Jr., Foley Milwaukee, argu- & Lardner of and oral Brody. ment Mr. respondent
For the there were briefs Edward A. *4 Dudek, Frisch, James D. Friedman and Dudek & Slat- tery, Milwaukee, Ltd., argument by of and oral Edward A. Dudek.
A by brief amicus curiae was filed Bronson LaC. attorney Follette, general, Armstrong, John E. assistant attorney general, counsel, and Hotz, William R. of all Madison, of Savings for Wisconsin of Commissioner and Loan. Maclver, by K. amicus curiae was filed John
A brief Friedrich, Michael, all Best & Jackson W. Charles League Milwaukee, Savings Wisconsin. for review, we con- CALLOW, J. On this WILLIAM G. Savings legality and Loan Asso- Mutual sider 'Supreme Account II. ciation’s
I. Savings Association of Wisconsin and Loan Mutual (Mutual) savings and loan associa- a chartered state savings largest and loan the state. It is the third tion. 1974, September of Mutual wrote to the Wisconsin In advising it Loan him that Commissioner considering date, a service offering, at future was some Supreme II. As the court called Account characterized savings appeals, account is “a service which a depositor payment from can authorize his loan party by issuing a directly third account to a sight negotiable payable on draft his account and drawn payee.” April 9, 1976, to the named On Mutual notified proceeding implement it was the Commissioner legal support for account. letter outlined requested opinion service and an of the Commissioner regard legality. April 16, with to its On the Com- responded by a letter in missioner which he concluded any prohibition an there was “absence of [in governing against you the form of withdrawal statutes] proposed” legal. have and that account was therefore Supreme public Mutual offered Account II May 1976, becoming the first and loan asso- ciation Wisconsin to offer this service. desiring
Each Mutual customer a Account II $100, signature deposit an initial makes executes agreement, card and account rules and then receives sight supply payment may drafts or which orders *5 against drawn association the customer’s on the spaces date, sight provide drafts for the funds. The payee, draft, de- amount the name of positor’s signature sight as drawer. drafts are Once they by presentation are collected issued, to Mutual through the Milwaukee office of the Federal Reserve Chicago, Bank the aid Bank-Midland. with of First presented daily are a The items with cash letter sum- mary, midnight day and Mutual until has follow- ing presentment to advise the Federal Reserve properly payable. items which are not opened Mutual’s who customers have such an account drafts, payee can sign, fill in the and deliver them ato goods cash, return for services, or to obtain or other- negotiate negotiate payee wise them. The can item deposit it with own his financial institution so that may the draft be collected from Mutual. Withdrawals Supreme posted from a II Account are to the account a they cash withdrawal in the same fashion as would be if personally the customer had into a Mutual office. come provisions Stats., To 215.17, accommodate the of sec. reserves, agreement, Mutual in the account rules right require thirty days’ prior payment notice sight draft; practice, requirement is waived. monthly listing customer a receives statement all deposit (whether account and withdrawal transactions accomplished by otherwise) occurring during draft or period. earnings payable statement The rate of Supreme funds held Account II was established percent. Mutual’s board of directors as zero (WBA) Plaintiff Wisconsin Bankers Association had only day discovered or two before announce- Mutual’s offering ment and Account II Mutual what planning was to do. It had heard that the Commissioner and Loan had Mutual authorized to offer the account. The May WBA wrote the Commissioner on 1976, arguing “any attempted action ... a sav- *6 negotiable orders ings offer association loan [to (Emphasis in nature.” vires would ultra withdrawal be] replied that Deputy original.) Commissioner in The authority acting on the Commissioner’s Mutual not was statutory taking advantage merely “broad of the but was statutory any or power without to offer accounts governing the form that those administrative restrictions restric- may of such take” and “the absence withdrawals [negotiable of withdrawal] use orders tions on the with accounts.” connection May 17, 1976, days Supreme Monday, three after On by Mutual, the II was announced and offered Account representative plain- as and two of members WBA its. all com- class action on behalf of tiffs commenced this seeking Wisconsin, temporary per- mercial banks in offering injunctions prevent manent Mutual from Su- preme II similar account. circuit Account or The restraining granted pending temporary a court order hearing injunction. application preliminary on the for Following evidentiary hearing, an the circuit court de- temporary injunction nied the and dissolved the restrain- ing offering order. Mutual then resumed the account.
The action was then advanced for trial. After four days testimony, opinion the circuit court filed August 1977, concluding Supreme 17, the Account legal denying requested per II was a account and the injunction. Judgment, dismissing complaint manent upon merits, 7, its was entered on October 1977.1 1 23, 1976, In an order dated June the trial court denied Mutual’s plaintiffs’ standing. motion to for dismiss lack Mutual did appeal not dismiss, plain from the denial of motion to its and the standing bring challenged tiffs’ this action has not been appeals. this court in the court of recently noted, generally require As we have Wisconsin courts plaintiff possess standing jurisdictional prerequi- aas judicial policy. site but rather as a matter sound ex State rel. Rapids First National Peoples Bank Wisconsin v. M I& Bank appeals judgment affirmed court circuit Wisconsin court. Asso. Bankers Mutual Sav- ings Asso., (Ct. & Loan Wis.2d N.W.2d App. 1978). granted On plain- March 26, we petition for tiffs’ review. review, plaintiffs argue
On that the Ac- savings account, count II is not a required by as Stats.; 215.13(1), illegally engaged that Mutual banking by offering account; business and that paying Mutual is not withdrawals from the account “to “ saver,” the owner” and required by sec. 215.- [to] 17(1) (a). (4) reject *7 plaintiffs’ While we the first and contentions, second we hold that Mutual’s use of negotiable orders of withdrawal is inconsistent with the statutory mandate paid that withdrawals be “to the own- er” and the Accordingly, saver.” “[to] we reverse.
II. court, plaintiffs In the presented trial the extensive testimony by expert regarding meaning witness the of “savings the term explained account.” As in that testi- mony, commercially accepted the definition and the ordinary meaning “savings of pre- the term account” scribe the existence of (1) three characteristics: a savings bearing; (2) account is subject interest it is to requirement a prior withdrawal; of (3) notice and may withdrawals paid only from it to its owner. Be- Coloma, 303, 5, 95 Wis.2d 321, 308 n. 290 325 n. 5 N.W.2d (1980). question While we are not foreclosed from the plaintiffs’ standing present (see, Mutual’s to failure the issue e.g., Scharping Johnson, 395, 383, v. 32 Wis.2d 691 N.W.2d (1966); Appendices Briefs, 7), and Vol. No. we do believe grounds appropri resolution of the case on these would be ate, and we appeals will review the decision of the court of on However, the doing so, merits. express we no as to view plaintiffs possess whether standing question the the legality offering Supreme of Mutual’s Account II. a earnings payable funds held in on rate of cause the percent as zero II was Supreme Account established allege, from a Su- because, withdrawals plaintiffs presents anyone paid who preme II are Account Supreme draft, plaintiffs claim the account owner’s meaning within account II is not a Account is Stats.; Mutual not allowed 215.13(1), of sec. payments accept an account. such import usage agree. than Rather cannot We meaning, legislature generally accepted the term’s “savings account” definition. Sec. to restrict chose “‘[s]avings Stats., account’ 215.01(24), states monetary in the the owner thereof means the interest of aggregate and con- accounts in the association interest.” This value of such sists of the withdrawal Schaller, legal given State v. must be effect. definition rule, (1975). a 107, 110, “As 70 Wis.2d N.W.2d a “means” which what term definition declares ‘[a] ” any meaning . stated.’ Colautti . . excludes that is not (1979), quoting 2A Franklin, 392 n. 10 439 U.S. Construction, Sands, Statutory 47.07 Statutes (4th Supp. 1978). ed. Thus on the issue whether “savings account,” defined II is Account 215.01(24), consequence rate no it sec. earnings *8 per- payable Supreme Account II is zero on may paid cent or that withdrawals to someone other owner; characteristics, than the account these while meaning, perhaps ordinary features of the term’s are required by statutory term. definition plaintiffs Supreme
The have never contended that the statutory Account II does of sav- not meet definition ings they successfully account. Nor could do so. We Supreme that conclude a Account II is a account Stats., and, employed Chapter 215, in that term is consequently, accept that Mutual de- is authorized to accounts, pursuant posits 215.13(1). on such to sec.
III. plaintiffs offering The also contend Mutual’s the Su- preme illegal Account II a constitutes conduct of banking 224.03, Stats., business. Sec. makes it unlawful any person, “for copartnership, association, corpora- or banking having tion do regu- a business without been organized larly bank, and chartered as a national a state bank, savings bank, a company mutual or a trust bank.” “banking The term business” is defined sec. 224.02: soliciting, receiving, accepting money “The or or its equivalent regular deposit per- on aas business son, copartnership, association, corporation, or shall be doing banking deemed to be business, a whether such deposit subject is made to check or a is evidenced deposit, pass book, receipt, certificate of note, a a a writing, provided nothing ap- or other shall herein ply or money agent, pending include left with in- vestment in real estate or for on securities account principal.” his plaintiffs The assert Account II is a “de- posit subject .. . deposit check” and a within the proscription Chapter 224, Stats., and that the account illegal. disagree. is therefore We In Mfg. State ex rel. Comm., Rohn S. Co. Industrial 217 Wis. (1935), N.W. 449 it was contended association, that an not chartered as a bank and unau- banking illegal thorized engaging to do business, was banking in Stats., violation of 224.03, secs. 224.02 and by its receipt money solicitation and deposit. association was engage licensed and authorized to company” 216.01, business as an “investment under secs. 216.02 215.47, and 215.38 to Stats. 1929. Sec. 216.01 required corporation then “doing that no business as *9 . . company, . . . which . . . and investment . so-called , . . . . to . . itself payments to be made shall solicit coupons, issuing shares, certifi- bonds, so-called therefor obligation or membership of evidences of or other cates it unless agreement” in Wisconsin shall do business Chapter requirements of complied with the have shall association “manifest” it We deemed Stats. relating under statutes “is to be licensed Wisconsin associations, building is to licensed not be and loan to banking doing relating of a the statutes to the under business. receiving soliciting and Consequently, the mere licensed, payments association, by an investment —as of ch. association, plaintiff sec. 216.01 and is —under Stats., of evidence and its therefor written issuance obligation agreement, to the owners or return —to money anything value, be are to considered thereof legitimate scope busi- to be the authorized within the recognized by company, as ness such an investment doing 216.01, are deemed the Stats., supplied.) Id. prohibited banking (Emphasis business. at 143-44.
Similarly, prohibition of 224.02 and we conclude the secs. money deposit against acceptance of on and 224.03 offering presents Supreme Account no bar to Mutual’s II. Stats., permits savings 215.13(1), expressly Sec. “ savings [a]ccept payments
loan ac associations counts,” stated, and, Supreme already Ac as we have depository count II such a is account. Thus the relationship plaintiffs object, which Mutual’s ac cepting payments Supreme II, on a Account ‘to be con legitimate scope sidered to be within the of the author association, ized business” of a and is and loan prohibited banking doing “not to be deemed the busi Mfg. Comm., ness.” ex rel. State Rohn S. Co. v. Industrial supra legality 143-44. at II Account *10 provisions with reference determined must be Chapter 215.
IV. savings Stats., 215.13(4), provides and loan Sec. savings requests may “[p]ay withdrawal associations full, accounts, part or in in accordance with s. 215.17.” pay 215.17(1) permits withdrawals associations to Sec. savings provides and that the association on its accounts savings “may pay of such accounts owners provide withdrawal value thereof.” The statutes further ay [p] upon . . . re- that the association “shall saver” (4) ceipt requests, 215.17 written withdrawal sec. of the paid” (a), withdrawal and that “the saver shall be 215.17(4) (c). plaintiffs Mu- request, The contend sec. sight from withdrawals tual’s use of drafts to effect Su- preme payment of Account II constitutes the withdraw- statutory persons, man- in violation these als to third dates. holding argument appeals rejected court legislature’s provision and loan de
that “the positor paid to the saver or owner withdrawals be draft, complied depositor’s expressly made with when a payable person, to a third is honored upon loan which is drawn.” Wis association the draft Asso., consin Loan Bankers Asso. v. Mutual & Although at found Wis.2d 502-03. the court “unambiguous,” Stats., 215.17, at section Id. require interpretation. was found to construction appeals provi The court of concluded that the section’s “ paid sions that withdrawals be “to the owner” and [to] party payments do the saver” not restrict to a third light legal history “pay commercial and of the to” phrase, depositor-association the nature of the relation-
ship, “legislative policy articulated in favor of competition.” Id. business at 498. find this conclu- We reasoning sion and incorrect. ambiguity ju
In
statute,
the absence
in a
resort
interpretation
dicial
per
rules of
and construction is not
mitted,
given
and the words of the statute must be
their
ordinary meaning.
obvious and
ex
State
Milwaukee
rel.
County WCCJ,
237, 241,
73 Wis.2d
When a
ambiguous,
statute or
per
thereof is
it is
legislative
missible to look to the
intent which is to be
language
found in the
of the statute in relation to the
context,
statute’s
scope, history,
subject matter, and
object
accomplished.
intended to be
Wisconsin’s Environ
mental Decade v. Public
Comm.,
344,
Service
81 Wis.2d
350,
(1978).
We start
ings
pay
gov-
and loan associations to
withdrawals
is
215.13(4), Stats.,
incorporates
erned
which
sec.
Chapter
comprehensive enactment, reg-
215 is a
215.17.
provisions
given
ulatory
such,
in nature. As
its
are to be
expansive application,
preserv-
supplanting,
rather than
ing,
existing
previously
practices.
common law
regulatory
moreover,
generally
legislation,
“Modern
regarded
arrange-
newly
system
legal
aas
conceived
emergent problems
society,
newly
ments to deal with
entitled to liberal construction
remedial
because
its
subject
character and not
rule
to the
of strict construc-
derogation
tion
of statutes
of the common law because
genesis
conception
wholly
apart
its
are
outside and
from
common law frame of reference.”
Severity Savings
Colony,
Loan&
Asso. Wauwatosa
(1976), quoting
Wis.2d
Several factors us that accepted. First, disagree tion must be we court with the appeals’ conclusion that the historical definition of “pay to,” instruments, as used in commercial is of rele- ascertaining legislature’s using vance in intent in phrase governing where used a statute withdraw- als of likely accounts. We deem it more that the ordinary meaning phrase of this was intended. Mutual’s argument, accepted, only if requirement satisfies Stats., 215.17(1), “pay
sec. that associations to the owners”; “pay the commercial definition of to” is less meeting requirements assistance the associa- “[p]ay tion the saver” and that “the saver shall be paid.” (a) 215.17(4) (c). ordinary Sec. The mean- ing employed of the words dictates the conclusion that provisions complied of sec. 215.17 are not with when depositor’s draft, payable made to a third person, honored upon and loan associations which the draft is drawn.3
Second, reject appeals’ we analogy the court of to the principle favoring assignability of choses in action. Initially, expressly we note the court disavowed application direct principle assignability. Wis- consin Savings Bankers Asso. Asso., v. Mutual & Loan supra However, at 494 n. 17. appeals the court of re- principle ferred exemplifying to the a trend of in- creasing flexibility, leg- commercial shared both the courts, islature and and found Mutual’s utilization of the sight draft to be consistent with the trend. Id. at 495. The existence of the trend ap- indicated to the court of peals that sec. 215.17, Stats., should not be construed to proscribe sight language drafts in the absence of strict- decision, In its appeals the court of stated that various other practices employed by withdrawal distinguishable were Mutual from Account II participa as each involved “the direct superintendence tion and depositor” of the . . . in the transaction requested which the paid. withdrawal was Wisconsin Bankers Asso. Asso., v. Mutual & Loan 87 Wis.2d (Ct. App. 1978). plaintiffs N.W.2d 130 have not challenged statement; indeed, they maintain “that none practices payments these persons were other than the account owner, they complied and that ‘pay thus with the to the owner’ requirement Appellants’ of Supplemental 215.17.” Brief at appeals’ 16. Because the court of challenged statement was not necessary and was not decision, to that court’s we do not consider its correctness.
453
essence,
ly
interpretation.
This,
requiring
Id.
in
such
derogation rule.
maxim of con-
is a variant
“The
change
abrogate
familiar, that a
or
struction is
statute to
clearly
law,
principle
or
of the common
must be
rule
expressed
as
of the intention of
so
to leave no doubt
legislature.”
McNab,
Orton v. Noonan and
29 Wis.
Derogation
(1872).
Page,
in
See also:
Statutes
Analytical Tool, 1956
Law: The
as an
Canon
Common
Rev,
(1)
apply,
L.
78. For the rule to
there must be
Wis.
potentially
existence,
in
in
common
doctrine
ex-
law
presented
parties;
istence, relevant
to the issue
(2)
which,
as
the statute in issue must be one
construed
change
party pleading
contended,
operate
it
would
law;
ambiguous
(3)
the common
statute must be
shown,
on its face. These
was then war
three
court
proceeding
interpret
narrowly,
ranted in
the statute
possible
altering
have
as little effect
the common
bar,
law. Id.
In
at 97.
the case at
the common law trend
favoring
assignability
of choses
action is relevant
only
relationship
to the extent
association
between
depositor
can be characterized as debtor-creditor.
may
Case law4 and our own
indicate that
statutes5
appropriate.
important,
not
More
sec. 215.17 is
susceptible
light
derogation
to construction in
rule.
appeals correctly recognized,
As the court of
the section
regulatory
Mu
nature. Wisconsin Bankers Asso. v.
Asso., supra
tual
such,
& Loan
at 498-99.
it
As
is entitled
ato
liberal construction and is not to be con
derogation
narrowly
strued
as in
of common law rules.
Ante
appeals’
at 10.
conclude the court of
reliance on
We
continually growing
“a
flexibility in the relations be
depositors respect-
tween financial
and their
institutions
Robertson,
See:
Association v.
Wisconsin Bankers
Supp.
F.
(D.D.C. 1960),
(D.C.
1961).
ing . . . choses in action” to be error. Wisconsin Bank- Savings Asso., supra Asso. v. Mutual ers & Loan at 493. reject Similarly, appeals’ court we reliance on legislative policy in the “declaration favor busi- competition 133.01, . . found in ness . sec. Stats.” Id. at pari may in 502. While materia con- statutes together compared strued with each other order legislative intent, to ascertain the In Matter Estate Walker, 93, 102, (1977), Wis.2d N.W.2d stat- purpose utes which no common have aim or and which do relate person to same subject, thing, or are pari statute, 133.01, not in materia. The antitrust sec. Stats., 215.17, pari and sec. are not materia. appeals, perceived court of in its consideration of a legislative policy in competition favor of business flexibility the trend relationship toward in the of finan- ignored depositors, cial to institutions their traditional judiciary’s policy restraints on the assessment of to aid legislative in the construction aptly enactments. As by appeals, stated the court of “the function apply interpret court is to the statutes enacted legislature engage and not in an ad hoc economic con- judgment struction that substitutes of the court legislature.” for the act of the Wisconsin Bankers Asso. Asso., Mutual supra & Loan leg- at 500. While expressed choice, islative 215.17, Stats., may sec. unduly indeed be restrictive statutory and retrogressive, barriers expansion prac- the continued of commercial tices must legislature. be removed Accordingly, compelled we are provi- reverse. We hold that sions preclude of sec. sight 215.17 pay- use of drafts parties able third to effectuate withdrawals from sav- ings accounts. sought “a declara- review, plaintiffs have appellate
On II ille- is [Account] court from the tion Accordingly, the action gal.” Appellants’ Brief at 38. declaratory de- relief. Thus we requesting akin to one illegal II as inconsistent Supreme Account with clare 215.17, provisions of Stats. *15 Rights declared; the decision of the By the Court. — the and cause remanded to Appeals reversed is Court of proceedings not inconsistent for further Court Circuit opinion. with this J., part.
Coffey, took no Af- ABRAHAMSON, (dissenting). J. S. SHIRLEY Supreme II is a valid sav- holding Account that the ter 215.13(1), meaning of sec. ings within the account II not con- does Stats., the Account and that banking illegal under business the conduct stitute that majority surprisingly chapter 224, concludes the I dissent sec. 215.17. Supreme Account II violates the interpretation 215.17 majority’s of sec. because -the “pay holding phrase to unduly In the restrictive. savings prohibits loans in sec. 215.17 owners” the majority parties, the paying to third from withdrawals past purposes chapter 215 and deci- ignored the has chap- regarding interpretation of the of this court sions appeals, that the I the conclude, 215. as did court ter obligation “pay owners” loan to to the of a savings and loan “pay when the the saver” is satisfied or per- payable a third depositor’s made to the draft honors son. practice
Historically, of sav- it commercial has been the payment ings satisfy obli- to their and loan associations depositor gations or depositor by paying the to to a to depositor’s depositor A else at the direction. someone obtaining traditionally variety of means for has had a receiving payable withdrawals. cash Besides or check depositor depositor, to has been able to receive payable party an accommodation or a check to a third money payable party. order to third legislature prohibit savings
If the had to intended payment drafts, sight loans from it could have used explicit language express much prohibition. more legislature prohibition The would not left to be have phrase “pay owner,” inferred from the it when sight explicitly prohibiting knew how to frame a statute drafts, following as evidence two statutes: “ company deposits . . . shall [Trust not receive banks] subject draft, payable order or check on demand 223.03(11), . . .” . Sec. Stats. any pay shall “[Mutual dividend banks] portion deposit, deposit, or or of a check drawn upon depositor, passbook it unless the of the de- positor produced proper entry and a therein be made payment.” 222.12(4), at time Sec. Stats. recognizes majority plausible it is to inter- *16 pret language statutory the as satisfied when a pays person and loan request to a third at the of de- the positor, rejects interpretation. but it nevertheless this reasons, however, Its entirely unpersuasive. are majority 10), (p. relying opinion The on the written by Security Savings Justice Connor T. Hansen in Loan& Colony Asso. v. 179, Wauwatosa 71 Inc., Wis.2d 237 (1975), N.W.2d chapter regula- states that 215 is tory provisions given and expansive its appli- “are to be (p. 10), cation” and are “entitled to a liberal construc- 12). (p. majority’s tion.” I repeated find the emphasis Security Savings on the language misleading for several First, opinion reasons. Justice Security Hansen’s Sav- ings Loan, relating & construction of the ch. was opinion only justices; of justices three join four did not opinion. precedential this “majority” value of a Second, justices joined only is dubious. opinion three language Security Sav- significance the from the of the quoted by majority page ings opinion the Loan& opinion appeals, majority court of the is unclear. The application of parties views of the take different and the opinion majority language to instant case. The expansive applica- give the reader an never tells how spe- chapter 215, tion to or a liberal construction meaning 215.17 cifically 215.17, how the of sec. “expansive application” “liber- which from an or results meaning compares 215.17 al to the of sec. construction” “non-expan- “strict,” “narrow,” from a which results carefully explaining application.” that And after sive given expansive application and a chapter 215 must be majority narrowly construction, limits liberal clear, Third, narrowly “pay to.” it is construes the words Security opinion in Sav- you when read Justice Hansen’s concludes, ings after dis- Loan that Hansen & Justice law, regu- derogation cussing of the common statutes latory statutes, and broad and strict construction statutory statutes, construc- the “normal rules chapter at applicable” to 215. 71 Wis.2d 179. tion are statutory clearly aim of Hansen states Justice all chapter is the same as the aim construction construction, statutory namely the intent to discern “ language of stat- legislature ‘disclosed context, subject mat- scope, history, ute in to its relation object remedied or accom- ter and the to be intended ” passage plished.’ quote full 180. 71 Wis.2d at We setting opinion applicable Hansen’s forth Justice statutory chapter rule construction to 215: type common law and “This of association existed at *17 rights. possessed ings De Fazio Haven Sav common-laws v. (1956), 22 126 Atl. 511, and Loan Association N.J. Therefore, 2d it the stat- 639. must be resolved whether 458 subject applicable ute utes in is the strict construction to stat- rights. derogation of common-law restraining “Generally, con- statutes the freedom of subject tract have been rules. 82 considered to these Statutes, However, comprehen- C.J.S., p. 942, sec. 393. legislation having dealing associations, sive common-law with these rights, regulatory, placing is on limits those rights, enabling, conferring power than rather or au-
thority
B.,
on the
Julien Model
I.
association.
v.
L. &
89,
Asso. (1902),
90,
In
Wis.
Although majority phrase the the concludes that practice ambiguous, it commercial to” is concludes that ascertaining common are irrelevant the the law meaning legislative phrase Thus the of the or the intent. accept be majority what it to the refuses to concludes obliga- practice an common law and commercial by payment “pay can tion to the owner” to satisfied person. a to third unwillingness majority’s
I at find look com- practice general contrary mercial to the rules of statu- tory contrary good construction and common sense. legislature chapter 215, codifying ma- When drafted guidelines jor industry, for Wisconsin’s and loan legislating empty empty it not or with an was an slate Chapter developed knowledge head. 215 was with full legislature practices, established commercial industry existing history loan of the judicial precedent.
Although majority common, states that ordi- nary meaning “pay” apply, of the word should meaning- “pay,” opinion no-
commercial word meaning. ordinary where states the word’s The diction- ary “pay” “discharge obligation to,” mean defines agreed disposal money.” or “to make or transfer of *19 Dictionary p. Webster’s Third New International (1961). accepted following This court the has as the ordinary meaning “pay”: common of the word “ ‘Pay’ quite comprehensive meaning, is a word of but agree evidently ... we it was intended to or- have its dinary meaning discharge which is to the indebtedness money.” by 600, the v. Goodrich, use Krahn 164 Wis. (1917). 160 N.W. “pay,” ordinary meaning,
The word in its common, Thus, does not restrict depositor. transfer to the saver meaning “pay” both the commercial and the common meaning “pay” savings discharge allow a and loan to its payment obligation to the owner third transfer to a person. ordinary Under both its commercial and mean- ings, “pay legal to obligation the owner” addresses the deposited to deposi- institution return funds to upon tor but does discharging not touch the manner of obligation. Therefore, prohibit to read sec. 215.17 to payment persons to third is to rewrite the con- statute trary to both practice well-established and commercial ordinary usage of the terms.
A objection more majority’s opin- fundamental to the ion, however, is that preoccupation in its with the rule that regulatory liberally statutes be are to construed and given expansive application, majority has missed goal of determining legislative chapter intent 215.
Chapter designed provide was to a broad frame- powers savings work of for and loan Chap- associations. ter 215 was not procedural intended to abe detailed man- ual day-to-day operations for all the savings loan and associations. While regulated some matters are in de- leaving terms, general room tail, couched are others operation to adopt methods savings and loans for savings and loan obligation of a carry them out. provision of the “pay owner” is to the association to obligation on places payment type. 215.17 Sec. latter prescribing the savings without loan association discharged. obligation is to be in which manner at as the one provisions such generality of And if the inadequate it clear to make case instant issue given lati- wide were associations and loan point is made clear procedures, adopt tude 215.13(37), powers” provision in sec. the “omnibus associations and loan permits section That Stats. carry proper out necessary powers “all to exercise purposes of the association.” Loan Association April Mutual In of 1976 Savings and Commissioner the Wisconsin advised *20 II. Supreme Account implementing the it was that Loans regarding inquiry replied Mutual’s to The Commissioner legal support as follows: directing payment to a order third “A withdrawal long to new; able have been party is account holders designated par- third paid be to direct that withdrawals savings governing accounts Although statutes the
ties. se- go quence great spelling and in what into detail out when honored, may neither be orders withdrawal existing rules restrict statutes nor form of have administrative may In the take. absence order a withdrawal you against withdrawal any prohibition the form of object position to with- proposed, to I am not in a orders; my negotiable opin- it is being by made drawals permitted under kind are ion that of this withdrawals law.” Wisconsin current quoted the appeals in this case the court of While it could accord approvingly, letter it felt Commissioner’s because no to construction deference the Commissioner’s unambiguous. majority court of this was The statute statutory language ambiguous. is has now held that the majority gives reasons, however, The no for not accord- ing interpretation by to the statute deference Loans, Commissioner the official with ex- administering pertise chapter 215. statutory purposes savings
The and loans are two- promote provide management fold: to thrift to for provide the funds of the and at members the same time borrowers, mortgage especially money funds for for ownership. Security Savings Loan, home at & 71 Wis.2d sight payment 183. Since innovative services like the savings dollars, drafts attract which are then used to provide loans, payment sight home does drafts carry purposes out the and loan institutions. majority
The believes sec. 215.17 was intended to re- strict payment, opinion the method of but nowhere its purpose does it deal with the accomplished intended be by majority such a explic- restriction. Nor does the deal itly scope history with the subject or context or mat- chapter majority ter of 215. The has short-circuited the analysis required simple analysis this case “pay” the word as used in sec. 215.17 is ambiguous, that chapter regulatory scheme, 215 is a and that therefore legislative intent behind sec. 215.17 must be to re- payment. strict method of position taken ma- jority contrary precedent statutory and the rules of specific statutory construction. Absent a prohibition, sec. interpreted 215.17 should to allow and loan requests payments associations to honor for to third parties. interpretation Such an is consistent com- with *21 practice, mercial law, with common objectives with the chapter 215 and 215.13(37), Stats., with sec. which au- thorizes associations to powers necessary all exercise proper carry purposes out of the association. I dissent.
I am authorized state Day that Justice Roland B. joins in this dissent.