Montana Attorney General Opinion 15-395

Opinion No. 395 Banks amI Banking-Capital Stock, Reduction of -Stock hoi deI's l\Ieet- ing, Notice of. HELD: Section Ii, Chapter 89, Laws of 11)2i, requires forty-two days notice between date of mailing, as well as first Imblication of notice, and the l1ate of stockholders' meeting. Novemher 23, 1!)33 You hU\'e suhmitted ftH· my examina- tion and approval certificate of pro- ceedings reducing the capital stock of the Citizens State Bank of Choteau, ~rontana, from $50,000 to $30,000 and reducing the number of shares of stock of said bank. The certificate of the above proceedings discloses that the notice of stockholders meeting held (.n Xoyember 3, 11)33, was published in the Choteau Acantha on September 28, Octoher 5. Octoher 12, Octo her Hl, October 22 and XO\'ember 2, 1933 and that such notice was mailed to the stockholders on September 2i, 11)33. Section Ii, Chapter 89, Laws of 192i, pertaining to the procedure to be fol- lowed for diminishing the capital :;tock of i1 bank, provides: ,,*.... It shall be the duties of the trustees or di- rectors to publish a notice signed by at least a majority of them in a newspa- !ler in the county, if any shall he pull- lished therein, six succe~sive weeks, and to deposit a written or l)\;nted copy thc\'eof in the postoffice, ad- dressed to each stDckholder at his us- ual place of residence at least six \"eeks p\'e\'ious to the day of the meet- ing, .... * ." "A week consists of seven consecu- th'e days." (Section 4280, R. C. M. Hl21.) Six weeks would necessarily consist of forty-two days. Forty-two (lays pre\'ious to Novemher 3, the date of the meeting. exclusive of the day of mailing, would reach back as far as September 21, which would be the last day mailing could be made in or- der to allow for the specified time. Since the notices were not mailed l1n- til September 2i, or onl~' thirty-six da~'s prior to date of meeting. six week,,; did not elapse between the date of lllailing and the date of the meeting. Since the statute was not complied with, it is my opinion that the proceed- ings for the reduction of the capital litock II re not effecth·e. The statute also requires publica- tion of the notice "six succes!:o;ve weeks". This undoubtedly means six weeks 01' forty-two days prior to the meeting. This requirement, in my opinion, does not have reference to the number of insertions in the paper but to the time notice shall be gh'en, that is, six weeks or forty-two days. The statute specifies the number of weeks-not the number of times the notice shall he publisbed. Since only thirty-five days elapsed he tween the 276 OPIXIOXS 0]<' THE ATTORXEY GEXERAL date of the first puhlication and the date of the meeting the requirement of the statute was not met. \Ve call attention to the case of Gan)" v. :Martin. 70 "Mont. 587. 227 Pac. 573, where a" similar question wa;: discussed b~' our Supreme Court. 'rhe reasoning of the court in that case, in my opinion, would be applicable. The rule is "ell stated in a Nebraska easp. State v. Hanson. 80 Neb. 724, 115 X. W. 2!)4: "Where the time mentione(l by the statute expresses the duration of the notice, the same must be pub- lished for and during the time men- tioned. \Yhere, however, the time men- tioned indicates onl~' the number of times the notice is require(l to be pub- lished, it is satisfied if the notice is published thc numher of times men- tioned." (See also Scilley v. Hed Lodge Hosehud Irriga tion District, 83 ~Iont. 282. 272 Pac. 543.) As stated ill the Garry case the sub- ject of the publication of notice has ~ivpn the courts much trouhle. Even tlwugh there may be some douht as to whether or not the publication of the notice was sufficient. there can be no doubt that the mruiling of the notice (lid 1I0t meet the requirement of the statute. In order that there may not he an~' question in case the procedure should be gone m·er. I would suggest tha tat least forty-two days intenene between the date of the publication, as well as the date of the mailing, and the date of the meeting. and also that there be seven publications.