On Petition for Rehearing. The original opinion herein was filed April 26, 1932. On stipulations by the parties and at their request we granted several extensions of time to file a petition for a rehearing, the last extension being to and including October 15. No petition was filed until October 11, when one was filed on behalf of the bank commissioner.
One of the questions, the power or authority of the bank commissioner with or without aid of the court to borrow money from the Reconstruction Finance Corporation to pay dividends to depositors and creditors and pledge the whole of the assets of the insolvent bank to secure its payment, being in this jurisdiction a new and rather complicated question, the publication of the opinion in official reports was withheld until the time to file a petition for a rehearing had expired, or, if one was filed, until it was disposed of.
By the petition it again is urged, as it was on the original hearing, that the language of the statute whereby the bank commissioner is directed to take possession of the property of an insolvent bank and to "do such other acts as are necessary to preserve its assets and business and proceed to liquidate the affairs thereof," authorized the commissioner to borrow the money from the Reconstruction Finance Corporation and pledge a part or the whole of the assets to *Page 299 secure the payment of the loan, and authorized the court to direct him to do so. To support that, the case of in re Liquidation of Cashmere State Bank, the opinion of which was filed August 15, 1932 and reported in (Wash.) 13 P.2d 892,893, is cited and chiefly relied on by the petitioners. The decision is by a divided court, five to four. In the main, the majority opinion supports the contention of the petitioners. The opinion, however, concedes that "neither statute nor judicial decision expressly confer authority upon the state supervisor of banking to borrow money and pledge the assets of the insolvent bank in his custody to pay dividends. It must also be conceded that equity receivers do not, by virtue of their mere appointment as such, possess such powers." But it there was further considered that, while the banking act provided for the doing of certain acts by the supervisor with the approval of the court, which "include the sale and compromise of bad or doubtful debts, the sale of real and personal property, and the payment of dividends out of the ultimate funds remaining in his hands after the payment of expenses," yet such provisions were not restrictive and by their enumeration do not exclude others not specifically designated. The majority court further observing that, "bearing in mind that the state supervisor of banking is an executive officer of the state, that his duties are of a public nature, and that in the discharge of them he acts in the public interest, we are induced to place such construction upon the statute as will enable him to administer speedily, adequately, and comprehensively the trust imposed upon him," thus reached the conclusion that the court was authorized to direct the supervisor to borrow the money for the purposes stated. The dissenting members did not concur in that, and held such a construction not justified by the statute, and with respect thereto expressed views similar to those expressed by us in our original opinion.
For reasons stated in our opinion, where the statute in such particular is exhibited, we do not feel at liberty to give *Page 300 it a construction similar to that given the Washington statute by the majority opinion, notwithstanding the similarity of the two statutes. The language of the statute, as it seems to us, is plain and its meaning clear, in which case there 12, 13 is no room for construction or license to search for its meaning beyond the statute itself and requires the application of the familiar maxim, that a thing expressed puts an end to implication (25 R.C.L. 958), and that no motive, purpose, or intent can be imputed to the Legislature in the enactment of a law other than such as are apparent upon the face and to be gathered from the terms of the law itself. 25 R.C.L. 962. In applying the maxim, "Expressum facit cessare tacitum," the Missouri court in the case of Caldwell v. Ryan, 210 Mo. 17,108 S.W. 533, 537, 16 L.R.A. (N.S.) 494, 124 Am. St. Rep. 717, 14 Ann. Cas. 314, said that, "where a lawgiver sets down plainly his whole meaning, we are prevented from making him mean what we please ourselves."
Still whatever room there may be for difference of opinion as to that, for other reasons and grounds disclosed by our original opinion, it nevertheless follows that the ruling granting the writ should be upheld.
Our attention also is called to the case of the Supreme Court of Wyoming, State of Wyoming, on relation of B.W. Richmond v.District Court et al., 14 P.2d 673, filed September 27, 1932, but not yet published [in State report], wherein that court also considered the question as to the authority of the district court to authorize and direct the state examiner in charge of liquidation of an insolvent state bank to procure a loan of $150,000 from the Reconstruction Finance Corporation and to distribute the funds of the loan to the depositors and creditors of the bank, and reached the conclusion that no such authority or power was possessed by the court, and hence restrained the district court and the examiner from carrying out the order directing the examiner to borrow the money. As disclosed by the opinion, the statute so far as here material is similar to our statute. *Page 301
Upon further consideration of the case, we still are satisfied with the results reached in our original opinion. The petition for rehearing therefore should be and is denied.
ELIAS HANSEN and EPHRAIM HANSON, JJ., concur.
CHERRY, C.J., and FOLLAND, JJ., dissent.