(dissenting in part). For the reasons stated in the dissenting opinion filed by Mr. Justice Fairchied, I do not concur in the court’s conclusion that the unambiguous and explicit provision that “All deposits made in any state bank subsequent to the passage of this section shall be subject to the conditions thereof,” in sec. 220.07 (16), Stats. 1933, “applies to deposits made before as well as after the enactment of the section, in spite of the fact that so construed the sentence quoted is given no legal effect as all deposits would be subject to the law even if it had not been so declared.”
However, as is stated in the opinion filed for the court: “The stabilization and readjustment ágreement of 1932 remained a mere proposal to the commissioner of banking, and *243was without legal effect under the statute unless and until it was approved by him. . . . Whether or not the owners of the requisite amount of deposits and unsecured claims had signed the proposed stabilization and readjustment agreement was a matter of fact to be determined by the commissioner of banking before he made the approval. No attempt was ever made, so far as the record in this case discloses, to have this determination of the commissioner of' banking reviewed by the banking review board created by ch. 10, Laws of Special Session 1931 — 32.” In view of those matters, and for the reasons stated by the court in connection therewith, I concur in its conclusions that before the plaintiff “can recover upon the certificates issued to him he must in some way set aside or dispose of the stabilization and readjustment agreement;” that “the plaintiff may not collaterally attack the determination of the commissioner of banking in an action brought to recover a money judgment upon his certificates of deposit without first having brought the matter before the banking review board;” that “plaintiff having failed to avail himself of the remedy prescribed by statute cannot assert the invalidity of the stabilization and readjustment agreement on the ground that it does not conform to the statutethat his failure to so invoke the powers of the board concludes him in that regard as well as in all other respects considered in the opinion; and that, because of those conclusions, the judgment must be affirmed.
A motion for a rehearing was denied, with $25 costs, on February 4, 1936.