I dissent. It will serve no useful purpose to consider in detail the long opinion rendered by a majority of the Court in this cause. In my opinion the complaint states a cause *Page 632 of action. I deny that the Guaranty Fund, as established by the legislature in 1917, is a mere misnomer and can be changed as to its purposes and its devotion ad libitum. This is a cause in equity. The State Examiner is a party. The action is based upon the right of a depositor in the Guaranty Fund established under the old law. Here the major question is not involved of the priority of one depositor or of his right to participate as against another depositor under the old Guaranty Fund law, but the question is presented of the right of any depositor who has a right to participate under the old Guaranty Fund law, or of preserving his right or receiving anything at all for his deposit in an insolvent bank pursuant to the terms of the old Guaranty law. I am not concerned with the arguments in the majority opinion that serve to justify the enactment of the new law. In my opinion it is wholly unnecessary in this action in equity to erect line fences upon purely technical grounds to justify the application of the new law and the obliteration of the manifest intent and purposes of the old law. The majority opinion draws a shadowy line between an imperfect, inchoate degree of property and a vested right. I am satisfied that the complaint is sufficient under liberal rules of construction to show an accrued right, indeed, a vested right, if highly technical distinctions are to be drawn. If plaintiff's claim must be termed an imperfect, inchoate degree of property, the degree results not from plaintiff's acts but from the failure of state officials to follow the law. Under fair rules of construction applied to the allegations of the complaint, such as should be applied in cases of a demurrer thereto, considered in connection with the law applicable to such allegations, plaintiff's claim may have received every act of approval requisite for its payment out of the old Guaranty Fund. Unquestionably plaintiff had a deposit in this insolvent bank. He duly presented his claim to the receiver. By him it was duly allowed. This claim so allowed was certified to the Guaranty Fund Commission. Pray, who alone could certify? The receiver may have been appointed by the State Examiner; he may have been acting under the direction and supervision of the State Examiner. Laws 1915, chap. 53; Laws 1917, chap. 126. Under the law the State Examiner was authorized to take possession of this insolvent bank and to do all things necessary to conserve its assets and business and to proceed to liquidate its affairs. His receiver was required to report to him *Page 633 and to act under him. Laws 1915, chap. 53. The receiver in charge may have been in fact and in law the State Examiner.
The old Guaranty Law pretended at least to give some assurance to depositors, who had become such in reliance upon this law, that to the extent that the Guaranty Fund was constituted, some protection to them would be afforded when a bank in which they had deposits became insolvent. It imposed upon State Officers certain duties to be performed to the end that this protection might be carried into effect. The duties of allowance and certification were not imposed upon the depositor. Perchance, plaintiff presented his claim precisely as the State Examiner and the Guaranty Fund Commission, in their routine provisions, had directed and provided. Ought it now to be said and held in this, an equitable action, that plaintiff should lose this protection and his right because State Officers who are defendants in this action have failed in their duty? In considering this question no smoke screen can be spread as an answer to the effect that to accord this protection and preserve plaintiff's right, the new Guaranty law must be held to be unconstitutional. Such an answer is a non sequitur. The new Guaranty Law might be considered constitutional, and, nevertheless, the protection assured plaintiff and his right preserved. The question involves an assured protection and a right accrued in plaintiff's favor.
In my opinion the state chargeable as a trustee of the old Guaranty Fund to whatever extent plaintiff may establish his right under the allegations of his complaint. In this proceeding I am not concerned, so far as plaintiff's right is concerned, with the powers and duties, or even concerning the suability, of the Guaranty Fund Commission under the new law. The point is that depositors in closed and insolvent banks, whose right under the old Guaranty law had accrued before the enactment of a new Guaranty law, possess the right to charge the state as trustee of the fund established and constituted so for their benefit; and to maintain an action against officers of the state charged with its administration to enforce their rights.
I deny that the state, or any of its officers, with respect to plaintiff's accrued right, may take this trust fund from John Jones or Henry Smith and hold it for some different Jones or Smith who may, some time in years to come, perhaps, be a depositor in another insolvent bank; or likewise, that this trust fund, under the old Guaranty Fund *Page 634 law, so far as it must be devoted to the right of Smith or Jones, can be taken by a state officer and used for the purpose of rehabilitating or financing various or any going banks in this state.