I cannot concur in either opinion. *Page 570
The attorney general states the pivotal question as follows:
"Does the Union Guardian Trust Company, not having applied for and having received the right to do a general commercial and savings bank business under the statutes, come within the provisions of Act No. 32, Pub. Acts 1933, as amended?"
The answer is no.
The decision in Robinson v. People's Bank of Leslie,266 Mich. 178 (92 A.L.R. 1251), holding Act No. 32 not violative of constitutional judicial power in its provisions relative to banks and powers of the commissioner of banking thereover, may, possibly, be extended to a trust company, authorized by the commissioner of banking, under the statute (3 Comp. Laws 1929, § 12019), to do a banking business for in such case the subject matter is germane to banking and a trust company, in applying for and employing the grant of authority, subjects itself to all regulatory banking laws. But the act cannot be held to so bring a trust company, not authorized and expressly prohibited by the statute (3 Comp. Laws 1929, § 12018) from doing a banking business and, therefore, in the eye of the law, strictly a service fiduciary, under private appointment or court designation.
Trusts, created by private instruments, designating a chartered trust company fiduciary, or such designation by a court of competent jurisdiction, establish a relation and vest powers not in any wise related to banking and exclusively within judicial cognizance with reference to needed control, management and appointment of a successor trustee or trustees.
Act No. 32, Pub. Acts 1933, impinges this judicial power if held to apply to a trust company prohibited, by statute, from doing a banking business. *Page 571
If the trust company has violated the statutory prohibition the remedy is not under Act No. 32. The act does not bring a trust company, prohibited by the statute from doing a banking business, within its provisions and all the proceedings to the contrary are null and void and should be dismissed.
BUSHNELL, J., did not sit.
The late Justice NELSON SHARPE took no part in this decision.