State, ex rel. Post v. Benton
| Decision Date | 23 December 1890 |
| Citation | 47 N.W. 477,31 Neb. 44 |
| Parties | STATE, EX REL. GEORGE W. POST, v. THOMAS H. BENTON ET AL |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
Writ DENIED.
E. A Gilbert, for relator.
William Leese, Attorney General, contra.
No briefs filed.
The relator presented his information December 4, 1889, applying for a peremptory writ of mandamus to compel the auditor of public accounts, the treasurer of state, and the attorney general, as a board of bank supervisors, for the appointment of bank examiners under an act of the legislature of the state entitled "An act to require corporations firms, and individuals transacting a banking business to make reports of their resources and liabilities to the auditor of public accounts, and to provide for the examination of the affairs of such banking institutions, and to fix a minimum capital for the transaction of a banking business, punish the receiving of deposits by insolvent banking institutions, and to provide for winding up their affairs, and to repeal sections one, two, and three of chapter eight of the Compiled Statutes of 1887," approved March 29, 1889, to revise and rescind the rate of compensation to be paid for the service of bank examiners.
The relator sets up that he is a stockholder in the Tamora State Bank, and of other banks organized under the laws of this state at various places.
II. That the legislature of this state at its twenty-first session passed the act referred to.
III. That by its provisions the auditor, treasurer, and attorney general are constituted a quasi board to appoint the bank examiners therein provided, to exercise a general oversight of the operations of the act, and the examination of the banks of the state.
IV. That said board met and organized on July 1, 1889, and appointed A. P. Brink, J. C. McNaughton, and Thomas E. Sanders bank examiners, who qualified and entered upon their duties.
V. That section 8 of the act provides that "every person appointed to examine the affairs of any bank, corporation, firm, or individual transacting a banking business shall receive compensation for such examination at the rate of $ 10 for each day by him employed in such examination, which shall be paid by the bank, corporation, firm, or individual whose affairs are examined; Provided, that the fees paid by any such corporation, firm, or individual for any such single examination shall not be less than $ 10 nor more than $ 20."
VI. That said board, on July 1, 1889, made an order authorizing and requiring said bank examiners to charge $ 20 each in all cases as the fees of examiners without reference to the time employed, which order was without authority of law, and said board is not vested with judicial discretion to fix the amount to be charged for such examinations, which is fixed by the act, and said examiners refuse to examine banks unless they are to be paid the sum of $ 20 regardless of the time spent in making the same.
VII. That on October 31, 1889, the defendant, T. E. Sanders, one of the examiners, examined the Tamora State Bank, spending only the fraction of one day, and also examined the other bank in the village of Tamora on the same day, and required each to pay therefor the fee of $ 20, which sum was so paid.
The relator prays that a peremptory writ of mandamus may issue to said state officers, acting as such board, commanding them to rescind said order authorizing the charge of $ 20, and that said examiners be required to perform the duty of bank examination in the manner specially provided by law, and for the fees provided in the 8th section of the act.
The respondents answered, admitting the allegations of paragraphs two, three, four, and five of the relator's information.
II. In answer to paragraph VI, they set up that under the provisions of the banking act of March 29, 1889, the examiners are allowed $ 10 for each day employed in any examination, to be paid by the bank, and at no time has either of them ever received any compensation in excess of $ 10 for each day employed.
III. They further say that section 8 of said act provides that the fees paid by any bank for any single examination shall not be less than $ 10 nor more than $ 20, and that no bank is required to pay for more than one examination in any one year; that in pursuance of said provision the three respondents first mentioned made the order charging each bank examined the sum of $ 20 as a fee only after a full investigation of the time actually employed in examining the affairs of any bank, and upon finding that more time than one day was actually required in completing an examination, that the sum so charged is reasonable and just, and that if the time actually spent in a bank building was only charged for, many banks that require three days' time to examine their affairs would only be required to pay the sum of $ 10.
The affidavits of Examiners Sanders, McNaughton, and Brink are hereto attached, marked A, B, and C, and made a part of respondents' answer.
Respondents deny that the examiners, or either of them, ever refused to examine a bank unless a fee of $ 20 was paid, but alleged the fact that no bank has refused to pay that fee, and that in every instance an examination of the bank's books is first made before any fee is asked or compensation received.
IV. Respondents in answer to paragraph VII allege that on October 31, 1889, Sanders, the examiner, did examine the Tamora State Bank; leaving Utica he reached Tamora about 11 o'clock A M., and immediately after dinner commenced his examination and continued it until 6 o'clock P. M., discovering irregularities which required additional time for examination: I. The articles of incorporation were not signed. II. The records were not signed. III. The book of certificates showed that all of the certificates of stock were issued...
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