It becomes readily apparent that there are really but two issues here involved, and since the facts are so well known to counsel on both sides of this cause further or extended statement would seem to be unnecessary. It is contended upon the one hand that the assessment was made under and by authority of the above sections of the Colorado statute and in the proper amount, while on the other hand it is insisted that the resolution itself discloses that the assesment was for a purpose other and different from the one provided by statute and under authority of which the directors of the bank might assess the stock! They could act to remedy the impairment of its capital. It is readily apparent from the resolution passed in the instant case that the purpose of the assessment was not confined to the provisions of the statute but to provide a fund to take care of contingent losses that might be occasioned by some of its loans.
Therefore, it becomes readily apparent that the Directors acted beyond the scope of their authority in making the assessment, and without here making an unnecessary resume of the figures involved, it is sufficient to say that it is disclosed that at least $5200.00 was collected in addition to the amount necessary to maintain the integrity of the capital of the bank. Therefore, there are two reasons why the bank can not maintain its action’ in the instant case. First, because it acted beyond the scop© of its authority in making the assessment for purposes other than those recognized by the statute, and second, in assessing an amount greater than that required to conserve the capital of the bank. It- is not believed that extended discussion is necessary or profitable, but for the •reasons given it follows that the trial court was right in directing a verdict for defendant below, and the judgment is affirmed.
(Pollock, J., concurs. Roberts, J., dissents.)