The Farmers and Merchants Bank of Cairo, Ga., chartered subsequently to the banking act of 1893 (Ga. Laws 1893, p. 70) and before the act of 1919 (Ga. Laws 1919, p. 135), was placed in the hands of the superintendent of banks on November 1, 1932. W. A. Shiver was a charter stockholder in the bank, and still held his stock at the time of the failure of the bank. On January 13, 1933, a stock-assessment fi. fa. was issued against him by the superintendent of banks, in which it was recited that it was “issued by and under the authority of the said act of the legislature of the State of Georgia, approved August 16, 1919 [supra], amendment approved August 14, 1920, and as amended on August 26, 1925” (Ga. L. 1925, p. 119). On June 7,' 1933, the execution was levied on certain property of the defendant, who filed an affidavit of illegality on the grounds: 1. “Affiant denies the necessity for, the correctness of, and the amount of said assessment and the execution issued thereon, for the reason that the assets of said bank taken over by said Gormley as supt., if properly handled, managed, and collected, will pay all claims against said bank in full, and there is no necessity for any assess*751ment against the stockholders-thereof.” 2. That the assessment and execution were issued and were “proceeding by authority of section 20 of an act approved August 16th, 1919, entitled an act to regulate banking in the State of Georgia, which said section is unconstitutional and void for the following reasons, to wit(a) that the said section 20 is violative of art. 1, sec. 1, par. 3, of the State constitution, in that it provides that the superintendent of banks may, without any hearing, proceed to make an assessment against stockholders of said bank, and because said section authorizes an assessment to be made whenever he is of the opinion that the assets of the bank can not be converted into cash within one year from the date of closing, regardless of the solvency of said assets; (b) that said act makes no provision for the return and trial of any defense by any stockholder of said bank, the amendment to said act approved August 26, 1925, being void and unconstitutional because it seeks to provide for the filing of affidavits of illegality, and is violative of art. 3, sec. 7, par. 8, of the State constitution, for the reason that nothing in the caption of the act authorizes the said amendment providing for the filing of such affidavits and the issues to be raised thereon; (c) that the said bank was incorporated prior to the passage of the act of 1919, and that the only liability that the affiant assumed was, in the event the assets of the bank were insufficient to pay depositors, to become liable for an assessment, and that the assets of the bank were not at the time of the assessment, and have not yet been, liquidated and collected, and that the provisions of section 20 of the act of 1919 that the superintendent of banks might determine in his opinion that the assets of the bank could not be collected and converted into cash within twelve months, regardless of the solvency of said assets or the sufficiency of same to pay all depositors, are violative of the due-process clause of the State constitution. Upon the hearing the plaintiff made a motion to dismiss the affidavit of illegality, on the ground that no de.fense was set out. The court overruled this motion, and on motion of the defendant rendered judgment 'as follows: “It being admitted by both sides that the Farmers & Merchants Bank was chartered prior to the passing of the act of 1919, and that the defendant in fi. fa. was an original chartered stockholder, and that the assets of said bank have not yet been fully liquidated, *752and that the assets of said bank were placed in the hands of the superintendent of banks on November 1, 1932, that the law as it existed prior to the act of 1919 applies in this case both as to the liabilities of the defendant in fi. fa. and as to the method of procedure against him, and that his liability does not mature until all of the assets of said bank have been finally and completely liquidated, and on motion of defendant in fi. fa. the execution, together with the levy thereon, are dismissed.” The plaintiff excepted.
Ground 1 of the affidavit of illegality did not present facts which, if denied, might enable the court to intelligently pass judgment, or, if denied, might enable the jury to have before it the matter attempted to be put in issue, and therefore was insufficient to withstand the motion to dismiss. Sharp v. Kennedy, 50 Ga. 208 (2); Green v. Rogers, 62 Ga. 166 (2); Baker v. Akerman, 77 Ga. 89; Terry v. Bank of Americus, 77 Ga. 528 (2) (3 S. E. 154); Mobley v. Goodwyn, 39 Ga. App. 64 (146 S. E. 31).
Section 20 of article 7 of the act of 1919 (Ga. Laws 1919, p. 135), as amended by the act of 1925 (Ga. Laws 1925, p. 119), is not unconstitutional as in violation of the due-process clause of the State constitution, art. 1, sec. 1, par. 3, as it accords to a stockholder the right to contest by affidavit of illegality his liability for an assessment levied by the superintendent, of banks and the amount and necessity therefor. Coffin Co. v. Bennett, 164 Ga. 350 (138 S. E. 670), affirmed: 277 U. S. 29 (48 Sup. Ct. 422, 72 L. ed. 768); Davidson v. Citizens Bank of Fort Valley, 171 Ga. 81 (2) (154 S. E. 775).
The act of 1925 (Ga. Laws 1925, p. 119), amending section 20 of article 7 of the act of 1919 (Ga. Laws 1919, p. 135), is not unconstitutional as violative of art. 3, sec. 7, par. 8, of the State constitution, which provides that no law or ordinance shall pass which contains matter different from what is expressed in the title thereof, inasmuch as it states that, among other purposes, it is “to provide what issues may be raised ley a stockholder upon affidavit of illegality to executions issued against them by the superintendent of banks,” and is a sufficient reference to the provisions in the body of the act as to the right of a stockholder to contest an assessment made by the superintendent of banks.
The act of 1919 (Ga. Laws 1919, p. 135) as amended by *753the act of 1925 (G-a. Laws 1925, p. 119) does not impose any additional liabilities upon a stockholder in a bank created under the banking act of 1893.
{a) The authority granted to the superintendent of banks by the act of 1919 as amended by the act of 1925, as to making assessments and issuing executions, is only a mode of commencing suits to enforce the statutory liability of stockholders, and does not provide for the rendition by him of a judgment in personam against the stockholder. Coffin v. Bennett, supra; Bennett v. Cox, 167 Ga. 843 (9) (146 S. E. 835).
(b) The superintendent of banks is a statutory receiver. Bennett v. Wheatley, 154 Ga. 591, 599 (115 S. E. 83); Bennett v. American Bank &c. Co., 162 Ga. 718, 725 (134 S. E. 781). The individual liability of a stockholder can be enforced only by him, even though the bank may have been created before the act of 1919. Bennett v. Wilkes County, 164 Ga. 790 (139 S. E. 566).
(c) tinder the act of 1919 as amended by the said act of 1925, full opportunity is afforded to a stockholder to contest by affidavit of illegality his liability for assessment and the amount and necessity therefor.
(d) It is not necessary, before making an assessment and issuing an execution, that the superintendent of banks first exhaust the assets of the bank and determine the actual amount, if any, to be collected from stockholders. Lamar v. Taylor, 141 Ga. 227, 238 (80 S. E. 1085); Terry v. Tubman, 92 U. S. 156, 160 (23 L. ed. 537).
(e) The assessment and execution were not illegal for any reason assigned.
The court erred in overruling the motion to dismiss the affidavit of illegality, and thereafter all proceedings were nugatory.
Judgment reversed.
All the Justices concur.