dissenting. It is my opinion that affiant did not fail to support the 'allegations of her affidavit of illegality, to the effect that the superintendent of banks did not make an assessment as provided by law. Of course the execution must be based upon a legal assessment. Neither the superintendent nor any one else for him has ever in this case made a second assessment in the manner required by law. The execution must be based upon a judgment of the superintendent of banks against all of the stockholders of the bank, in the total amount of the sum he seeks to collect, equally and ratably, and not one for another, so that upon such judgment the liability of each stockholder can be prorated. Without this judgment neither the defendant nor any other stockholder in the Morgan County Bank can know whether or not he or she is liable for the amount of the execution issued against her. For myself, I have adhered uniformly and frequently to the view that section 30 of article 7 of the banking act of 1919 (Ga. L. 1919, pp. 135, 160) was unconstitutional and void, because it is in violation of article 1, section 1, paragraph 3, of the constitution of Georgia, providing that no person shall be deprived of property except by due process of law; and that shareholders were deprived of due process of law, in that they could not contest the correctness of the estimate and assessment made by the superintendent of banks or the amount thereof. From the record it plainly appears, even if it could be presumed as against the defendant in this case that an assessment was regularly made (though counsel for the superintendent of banks admitted in open court, in response to notice to produce, that such a judgment can not be found in the office of the superintendent of banks), that the assessment now under consideration is a second *238assessment. A prior assessment of 42 per cent, was theretofore made at a time when section 20 of article 7 of the original banking act of 1919 was in effect. Of course the first assessment is controlled by the provisions of section 20 of article 7 as contained in the banking act of 1919, supra. Even conceding (as I do not) that a proper judgment of assessment was made, it appears that the notice received by Mrs. Manley was dated December 17, 1926, and therefore it is obvious that at the time the second assessment was made the act of the General Assembly approved August 26, 1925 (Ga. L. 1925, pp. 119, 130) was in force, and the second assessment would have to be made in accordance with the provisions of that statute.
I dissent also upon the ground that the formal request that the decision of this court in Butter v. Mobley, 170 Ga. 265 (supra), which was a per curiam decision rendered at the close of the October term, 1929, be overruled, should be granted.