Being unable to concur in the opinion of Mr. Acting Associate Justice Cothran, I give hurriedly and briefly my reasons:
The sole question is: Are the defendants, the receivers, authorized to bring the action against the stockholders, under and by virtue of the Act of 1929, now Subdivision of Section 7855, Code of 1932? *Page 546
That Act gives "any receiver appointed to liquidate the assets of any closed State bank" (italics added), the right to bring such action.
The language, I venture to think, is so plain that we need not resort to any rules of construction to ascertain its meaning.
Indeed, it is only where uncertainty and ambiguity exists that resort is had to rules to ascertain the meaning of a statute.
As Chief Justice Marshall said in U.S. v. Fisher, 2 Cranch, 358, 390, 2 L.Ed., 304, "Where the intent is plain, nothing is left to construction."
I cannot imagine language being plainer than that employed by the Legislature.
It is not for the Courts to legislate; theirs is the duty to carry out and enforce the legislative will.
Mr. Justice Cothran invokes the rule of ejusdem generis, which as said by our Court in Vassey v. Spake, 83 S.C. 567,65 S.E., 825, 826, does not apply when "the intention is clear, and there is no room for construction."
I see no authority, whatever, for reading into the Act the words "appointed by the State Court, after the terms of the Act, above set out have been complied with," which is what the construction contended for requires.
The plain unambiguous language of the Act, as I see it, does not authorize the addition of such words, in order to get what the Legislature meant.
It is admitted that the defendants are "receivers of a closed State Bank."
This Court cannot inquire into the legality of their appointment. The federal Court made the appointment, and there has been no appeal therefrom.
The Court in Branchville Motor Co. v. Adden et al., 158 S.C. 90,155 S.E., 277, has said that the receiver, and he alone, must bring the action. It can no longer be brought by the depositors. *Page 547
In Ex parte Traynham et al. v. Smith et al., 158 S.C. 249,155 S.E., 428, the Court said that depositors cannot bring the action until the receiver, upon demand, has refused to do so.
Any receiver can bring the action; a receiver must bring the action; depositors cannot do so, until the receiver has refused, upon demand — so run the decisions of this Court.
The question of additional costs, if the fund be administered by the receivers in the federal Court, is, I think, aside from the real question; but, it may be said, in passing, that the defendants, in their return, have made it known that they expect to receive only the compensation fixed by the Act, by which they would be bound; but, in addition to that, I do not see how they could claim the benefits of the Act and repudiate its burdens.
If they take a part of the Act, they must take it as a whole. I think the injunction should be refused and the complaint dismissed.
MR. JUSTICE CARTER concurs.
*Page 1