On petition for rehearing it is contended that this Court in its original opinion omitted and failed to consider: (1) unpaid obligations of the bank; (2) that the bank's depositors were paid but not its creditors; (3) that the bank was insolvent when the liquidator was appointed and the assessment made; (4) that the bank creditors have no remedy or funds out of which they are to be paid. Other grounds appear, but it is unnecessary to recite the same for the purpose of this opinion.
It cannot be overlooked that the Comptroller of Florida has no power or jurisdiction over banks other than conferred by Chapter 13576, Acts of 1929, Laws of Florida. It is not an arbitrary power, but only such power as authorized by law and when action is taken which is not authorized, the same is void. It is true that the Comptroller can appoint a liquidator when the bank is insolvent or in an unsound condition, threatened with insolvency, or unsafe for investments, and for other reasons. These different reasons or authority of the Comptroller for appointing a liquidator and taking over a bank were made an issue by a number of pleas and testimony was taken thereon and appropriate instructions given by the court to the jury.
The facts as disclosed by the record show that a "freezing" order was issued in the fall of 1932 and the doors of the bank closed in March, 1933, by proclamation of the President and referred to as the bank moratorium and it made no effort to again do a general banking business. During the month of August, 1935, the Comptroller appointed a liquidator, and after notice to some of the officers thereof, the Judge of the Circuit Court entered an order confirming the appointment of the liquidator and it is contended that the notice served on the officers of the bank of the confirmation order is sufficient in law to preclude *Page 183 this defendant shareholder from making an issue of the authority of the Comptroller to appoint the liquidator and perfect the assessment.
It seems that it would be a harsh rule to apply to a shareholder to say that he cannot question the authority of the Comptroller to take over the bank, and make the stock assessments under the law because notice was duly made and served upon the officers of the bank of the application for a court order confirming the acts and doings of the Chancellor. It is doubtful if such procedure would be substantial justice. We have examined the petition for a rehearing, heard argument of counsel and considered the briefs, and conclude that each contention was considered by this Court in its original opinion. The original opinion herein is adhered to and reaffirmed.