Fite v. Henson

Atkinson, J.

1. The controlling question is as to the right of the plaintiff to bring the suit; for if the receiver did not have the right to bring the suit, the action brought by him could not be main-tamed. That question depends on the construction, validity, and applicability of section 4 of article xv of the act approved August 16, 1919 (Acts 1919, pp. 135-222), as follows: “No suit to forfeit the charter of any bank, or for the liquidation of any bank, or for the appointment of a receiver of any bank, shall be instituted by any person except by and through the superintendent of banks in the name of the State. Any person shall have the right to submit to the superintendent of banks any facts which under the law would authorize the forfeiture of the charter of a bank, or any facts which would authorize the liquidation of a bank, or the appointment of a receiver therefor; and on such submission being made, it shall be the duty of the superintendent of banks to investigate, and if on such investigation he ascertains that the facts are such as will justify action for forfeiture of the charter, or for the liquidation of the bank, or for the appointment of a receiver, it shall be the duty of the superintendent to take appropriate action in the premises.” The above quoted matter is only a part of one act that purports to deal broadly with the whole system of State banking laws of this State, and must be construed in the light of other provisions of the statute. The caption is: “An act to regulate banking in the State of Georgia; to create the Department of Banking of the State of Georgia; to provide for the incorporation of banks, and the amendment, renewal, and surrender of charters; to provide penalties for the violations of laws with reference to banking and the banking business; and for other purposes.” Without quoting the provisions of the body of the act at length, it is sufficient to point out some of the features. Article ii creates the Department of Banking in this State (Park’s 1922 Supplement, §§ 2263(a) et seq.), one feature of which is creation of the office of superintendent of banks. That officer is made head of the Department of Banks. Throughout the act his powers and duties appear. They are numerous and broad. Among them are authority to supervise all State banks, and, in circumstances as enumerated in Article vii (Park’s 1922 Supp. §§ 2268(a) et seq.), to take possession of banks and administer their assets for the benefit of creditors and stockholders, and, as provided in section 20 of article vii (Park’s 1922 Supp. § 2268 (t)), to make assessments on shareholders for statutory liability to depositors elsewhere provided for (in section 1 of article xviii [Park’s 1922 Supp. § 2279 (a)]), and issue executions for such assessments. The powers and duties of the superintendent of banks, with respect to administration of the affairs of insolvent banks and the collection from shareholders on their statutory liability to depositors, are not less broad than would ordinarily be granted to a receiver. When this is taken into consideration in connection with the language of section 4 of article xv (Park’s 1922 Supp. § 2276 (d)) that provision of the statute must be construed as mandatory, and as outlawing suits for receivers of banks that are not brought by the superintendent of banks in the name of the State.

2. It is alleged that the same section 4 of the act is violative of article 3, section 7, paragraph 8 (Civil Code, § 6437), of the constitution, which provides that “No law or ordinance shall pass, which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof,” because that portion of the act contains matter that is different from what is expressed in the caption. The contention is that the restriction prohibiting .persons from bringing suits in their individual names for receivers of banks is unauthorized by the language of the caption. The caption is heretofore quoted. Its language indicates that the body of the act will take a broad range. The objects are mentioned in general terms that are followed by the words, “and for other purposes.” One of the objects expressed is “to regulate banking in the State of Georgia.” This is broad enough to include provisions safeguarding the business of banking in this State. The power to sue for appointment of receivers has reasonable relation to the business of banking, and its regulation as provided in the body of the act is authorized by the language of the caption. Morris v. State, 117 Ga. 1 (43 S. E. 368); Stanley v. State, 135 Ga. 859 (70 S. E. 591); McFarlin v. Board of Drainage Commissioners, 153 Ga. 766 (113 S. E. 447).

3. Another attack on the same provision of the act is that it violates article 1, section 3, paragraph 2 (Civil Code, § 6389), of the constitution, already quoted, because, if applied to the case under consideration, it would be retroactive, the cause having originated prior to the passage of the act. There is no merit in this ground of attack. The statute is remedial, and its application in this case relates to appointment of a receiver after the act became operative.

4. Another ground of attack on the same provision of the act is that it violates article 1, section 1, paragraph 3 (Civil Code, § 6359), of the constitution, before quoted, because when applied to the case under consideration the act would deprive the parties for whom the receiver brings suit of their property and their property rights without due process of law. This ground of attack is without merit. The right of the parties at interest to have a receiver is not lost. The statute is only a reasonable regulation on that subject. They may submit facts to the superintendent of banks that would authorize appointment of a receiver, and it would be his duty to apply in the name of the State for receiver, and for his refusal mandamus would lie.

5. Another ground of attack is that the statute violates article 1, section 1, paragraph 23 (Civil Code, § 6379), of the constitution before quoted, because the statute “confers on the superintendent of banks legislative, judicial, and executive duties and powers to be exercised at the same time, the act leaving him to ‘ take appropriate action in the premises/ without specifying what action or procedure or law or by whom such action shall be determined to be appropriate or even legal.” There is not merit in this ground of attack. What would be “appropriate action” in a given case would depend on the facts presented, and not on the decision of the superintendent of banks.

6. Another ground of attack on the same statute is that it violates article 1, section 4, paragraph 1 (Civil Code, § 6391), of the constitution (before quoted), because the act is a special law applying only to banks for which there are existing general laws on the same subject, viz.: Civil Code, §§ 5475, 5476, and 5479, herein-before quoted. This act is not subject to the ground of attack. The act is not a special law. It operates uniformly throughout the limits of the State, and applies in all cases of applications for receivers for State banks. It is a general law.

7. The statute is ■ applicable to the case under consideration. While the bank became insolvent and ceased to do business, and the assessments to pay depositors were made and actually paid by Class A shareholders, and the liability of Class B shareholders to depositors had occurred all before passage of the act of 1919, the bank had not ceased to exist, but remained subject to the regulatory provisions of the statute. If a receiver should be necessary to collect the amount due to depositors by the shareholders, the appointment should be upon a suit instituted by the superintendent of banks in the name of the State, as provided in the statute.

8. The petition filed by the receiver showed upon its face that his only authority to sue was an appointment as receiver made in a case instituted by a depositor creditor of the bank in his individual name, in violation of the statute. In these circumstances the action for receiver was void as prohibited by the statute, and consequently the judgment appointing a receiver was void upon its face and subject to collateral attack. 23 Am. & Eng. Enc. Law, 1126, § xxiii: 23 R. C. L. 44, note 20 : High on Receivers, 203. Tenth Nat. Bank v. Smith Const. Co., 227 Pa. 354 (76 Atl. 67, 136 Am. St. R. 884); Whitney v. Bank, 71 Miss. 1009 (15 So. 33, 23 L. R. A. 531). As the petition filed by the receiver against the delinquent Class B shareholders showed on its face the void order of the plaintiff’s appointment as receiver, the petition was subject to the demurrer urged against it on the ground that the plaintiff had no right to sue.

9. The ruling announced in the preceding division of necessity disposes of the whole case, and renders it unnecessary to deal with other assignments of error. As the whole case is disposed of by rulings based on assignments of error in the cross-bill of exceptions, the main bill of exceptions will be dismissed. Moore v. Kiser, 144 Ga. 460 (87 S. E. 403); DeLoach v. Ga. Coast &c. R. Co., 144 Ga. 678 (87 S. E. 889).

Judgment reversed on the cross-hill of exceptions. Main hill of exceptions dismissed.

All the Justices concur.