Baird v. Whitmire
| Decision Date | 22 January 1932 |
| Docket Number | No. 6005.,6005. |
| Parties | BAIRD v. WHITMIRE et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Prior to the taking effect of chapter 96 of the Laws of 1931, section 5168 of the Compiled Laws 1913, which provides that the shareholders of a banking association “shall be individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such association made or entered into to the extent of the amount of his stock therein at the par value thereof, in addition to the amount invested in and due on such shares, * * *” was in force, and though said chapter 96 of the Laws of 1931 repeals section 5168, yet the same chapter, by express terms, reenacts and incorporates all of the provisions of said section 5168 in the new law; and therefore such provisions are not repealed but continue in force without interruption, so that all rights and liabilities that have been incurred therein are preserved.
2. Under the provisions of chapter 53 of the Laws of 1915, the general receiver of closed banks appointed under the provisions of chapter 137 of the Laws of 1923, chapter 99 of the Laws of 1927, and chapter 96 of the Laws of 1931, had power to enforce this added liability defined in section 5168 of the Compiled Laws 1913, and though chapter 96 of the Laws of 1931 repeals chapter 53 of the Laws of 1915, nevertheless such receiver still possesses such powers as the repealing statute, together with chapter 99 of the Laws of 1927, expressly said such receiver shall have the powers prescribed by statute.
3. Chapter 99 of the Laws of 1927 and section 51, subd. (h), of chapter 96 of the Laws of 1931, which says such “receiver shall have all the powers and authority ordinarily possessed and exercised by receivers of insolvent corporations or prescribed by statute,” construed, and it is held, they include in such terms all statutory powers then existing.
4. The term “prescribed by statute,” as found in chapter 99 of the Laws of 1927 and chapter 96 of the Laws of 1931, includes the power to enforce the added liability of the shareholders of an insolvent banking association as said power was prescribed by statute at the time of the enactment of such laws. Said chapter 99 of the Laws of 1927 was not repealed by chapter 96 of the Laws of 1931 except where it contains provisions inconsistent with and repugnant to the later statute, and the power to enforce such added liability is not inconsistent with nor repugnant to any provision of said chapter 96.
5. When section 51, subd. h, of chapter 96 of the Laws of 1931, gives to such receiver the powers “prescribed by statute,” it included the power conferred in chapter 53 of the Laws of 1915, even though such chapter 96 repeals chapter 53 of the Laws of 1915, as the Legislature had in contemplation the powers existing at the time the law was enacted.
Appeal from District Court, Burleigh County; Thos. H. Pugh, Judge.
Action by L. R. Baird, as receiver of the Farmers' & Merchants' State Bank of New England, North Dakota, against W. L. Whitmire and others. From an order sustaining a demurrer of defendant H. A. Borcherding to the complaint, plaintiff appeals.
Reversed.
Zuger & Tillotson, of Bismarck (F. C. Heffron, of Eugene, Or., of counsel), for appellant.
Dullam & Young, of Bismarck, for respondent.
The plaintiff, in winding up the affairs of an insolvent bank, brought this action to enforce the added liability of stockholders. The defendant Borcherding demurred to the complaint, alleging:
1. That the plaintiff has not legal capacity to sue.
2. That there is a defect of parties plaintiff in this: That the creditors in whose behalf and for whose benefit this action is brought have not been made parties plaintiff; and that no reasons appear in the complaint for the failure to make them parties plaintiff.
3. That the complaint does not state facts sufficient to constitute a cause of action.
The trial court sustained the demurrer, and the plaintiff appeals.
The complaint shows that the bank involved was closed on September 15, 1931, and that the plaintiff was appointed receiver on September 29, 1931. The complaint does not state when the bank was organized, that is, whether it was organized prior or subsequent to July 1, 1931; but the points involved are predicated on the theory that the bank was organized prior to the enactment of chapter 96 of the Laws of 1931 which went into force July 1, 1931.
Section 5189 of the Compiled Laws of 1913 states when, “A bank shall be deemed insolvent.” Chapter 53 of the Session Laws of 1915 amended this section by taking it in its entirety and adding thereto provisions for the appointment of a receiver by the state examiner and state banking board under stated conditions, giving such receiver power to “pay corporate debts and enforce the individual liability of stockholders.”
In 1923 the Legislature provided an entirely new method for dealing with insolvent banks, and in chapter 137 of the laws of that year, asked the Supreme Court of this state to assume “original jurisdiction of the insolvency proceedings to liquidate and wind up the affairs of all insolvent state banks within the state, at the time of the taking effect of this Act, and all such as may become insolvent during its continuance.” Section 1. This court was authorized to appoint a commissioner to have general supervising control over the insolvency proceedings subject to review by this court, and when a bank became insolvent the petition for the appointment of a receiver was made immediately to this court. Section 8 of said statute provides that the receiver “shall have all the powers and authorities ordinarily possessed and exercised by receivers of insolvent corporations or prescribed by statute and the court shall have all the power and authority with regard to the administration and closing of the affairs of such banks as are ordinarily possessed and exercised by Courts of equity over the affairs of insolvent corporations.” This statute did not carry the customary section repealing any specific statute or “all acts or parts of acts in conflict with this Act,” and expired by limitation on July 1, 1926.
In 1927 the Legislature re-enacted chapter 137 of the Laws of 1923 and incorporated the same, practically in its entirety, in chapter 99 of the laws of that year, including the quotations heretofore set forth. This chapter 99 has no specific repealing clause. Thus when chapter 137 of the Laws of 1923 and chapter 99 of the Laws of 1927 were enacted, and while these remained in force, chapter 53 of the Laws of 1915 remained on the statute books unrepealed, except in so far as a later statute transcends an earlier one repugnant thereto.
The Legislature of 1931 proceeded to codify the laws dealing with banks and banking by enacting chapter 96, which was approved March 12, 1931, and went into effect July 1, 1931. Most of the provisions of chapter 137 of the Laws of 1923 and of chapter 99 of the Laws of 1927 are included in this act.
In section 22 the Legislature incorporated, and re-enacted practically verbatim, the provisions of section 5168 of the Compiled Laws 1913, which says: Any variation in language makes no change in the sense or meaning.
This codification, in section 51, subd. (a), contains the provision asking the Supreme Court to assume “original jurisdiction of the insolvency proceedings to liquidate and wind up the affairs of all insolvent State Banking Associations within the state”; and in subdivision (h) authorized the appointment of a receiver “which receiver shall have all the powers and authority ordinarily possessed and exercised by receivers of insolvent corporations or prescribed by statute and the Court shall have all the power and authority with regard to the administration and closing of the affairs of such banks as are ordinarily possessed and exercised by courts of equity over the affairs of insolvent corporations.”
In section 50 of this chapter is found section 5189 of the Compiled Laws of 1913, chapter 53 of the Laws of 1915, with the provision for the appointment of a receiver by the state examiner eliminated therefrom, as provision is made for the appointment of a receiver by the court. This elimination takes from that chapter the provision that the receiver, when necessary, has the power to “pay corporate debts and enforce the individual liability of stockholders.” Such provision is not found anywhere in chapter 96 of the Session Laws of 1931; but, as stated before, when this chapter was enacted chapter 53 of the Laws of 1915 was in force, and remained in force until July 1, 1931. Chapter 99 of the Session Laws of 1927 was also in force and has never been repealed. Thus, when the Legislature said the receiver “shall have all the powers and authority * * * prescribed by statute,” it knew of the existence of chapter 53 of the Laws of 1915, and chapter 99 of the Laws of 1927, and of the powers specified therein.
This new law followed in the main, the plan for winding up insolvent banks set forth in this chapter 99 of the Laws of 1927.
Section 69 of this chapter 96 of the Laws of 1931 says that sections 5146 to 5204 of the Compiled Laws of 1913, except section 5149, 5163, and 5191, and certain session laws for the years 1919, 1923, 1925, 1927, and 1929, “together with all acts amendatory thereof and all others acts or parts of acts repugnant to and inconsistent...
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