Bennett v. Wheatley

• Citation: 115 S.E. 83,154 Ga. 591
• Decision Date: 07 December 1922
• Docket Number: (No. 3013.)
• Court: Supreme Court of Georgia
• Parties: BENNETT, Superintendent of Banks, et al. v. WHEATLEY.

154 Ga. 591

115 S.E. 83

BENNETT, Superintendent of Banks, et al.
v.
WHEATLEY.

(No. 3013.)

Supreme Court of Georgia.

Dec. 7, 1922.

(Syllabus by the Court.)

Hill and Gilbert, JJ., dissenting.

Error from Superior Court, Sumter County; Z. A.. Littlejohn, Judge.

Suit by H. H. Wheatley, administratrix, against T. R. Bennett, Superintendent of Banks, and others. Judgment for plaintiff, and defendants bring error. Reversed.

The Commercial City Bank of Americus was chartered in 1908. W. H. Crawford Wheatley was a large stockholder in the bank, and died on December 31, 1920, intestate. Helen H. Wheatley, his wife, was appointed administratrix on March 1, 1921. On January 3, 1921, the directors turned the assets of the bank over to T. R. Bennett, superintendent of banks for the state of Georgia, in compliance with the act of the Legislature approved August 16, 1919; and the superintendent went into possession immediately. T. R. Bennett is a resident of Fulton county, Ga., and maintains the office of superintendent of banks in that county. In compliance with the provisions of the act of 1919 supra, Bennett, as superintendent of banks, made two assessments against the stockholders of the bank, first for 20 per cent., and the second for 80 per cent. The assessments were made against the "estate of W. H. Crawford Wheatley, deceased, " and notices of the assessments were sent and were received by Mrs. Helen H. Wheatley. as administratrix of her husband's estate. The presiding judge appended a note stating that it was not disputed that Mrs. Helen H. Wheatley received the notice of the assess-

[115 S.E. 84]

ments as sent out by the superintendent; but nothing was offered or admitted to show the character of the notice, or that she received it as administratrix. The assessments were not paid, and two fi. fas. were issued by T. R. Bennett, as superintendent of banks—one on April 24, 1921, for the 20 per cent. assessment amounting to $6,600; the other on September 26, 1921, to cover the SO per cent. assessment for the sum of $26,-400. Both of the fi. fas. were issued against "the estate of W. H. Crawford Wheatley, " and the fi. fas. were directed to "all and singular the sheriffs of this state and their lawful deputies, " directing that of the goods and chattels, lands, and tenements of the "estate of Crawford Wheatley, of Americus, Sumter county, Ga., there be made the respective amounts heretofore set forth, with interest at the rate of 7 per cent., " etc.; and both of the fi. fas. were made returnable to the banking department of the state of Georgia, Atlanta, Ga., and the county of Fulton. Lucius Harvey, as sheriff of Sumter county, Ga., levied the fi. fas. on October 6, 1921, upon certain real estate located in Americus. Sumter county, Ga., as the property of the "estate of Crawford Wheatley, deceased, " to satisfy the fi. fas. Mrs. Helen H. Wheatley, as the administratrix of the estate of W. H. Crawford Wheatley, deceased, filed a petition in the superior court of Sumter county against T. R. Bennett, as superintendent of banks for the state of Georgia, alleging that he was a resident of Pulton county, Ga. In another note incorporated in the bill of exceptions the trial judge recites that—

"The fact that T. R. Bennett was a resident of Fulton county, Ga., and the office of the superintendent of banks for Georgia was located in Fulton county, Ga., the court raised the question of jurisdiction of this court to hear the cause; whereupon it was stated by counsel for T. R. Bennett, superintendent of banks, that T. R. Bennett thought this the proper court to try the question made, and waived all question of jurisdiction and waived jurisdiction."

Lucius Harvey, as sheriff of Sumter county, is a resident of Sumter county. The prayers of the petition were that the two fl. fas. be declared null and void, and have no legal claim or demand against plaintiff or the property levied on; that T. R. Bennett, superintendent of banks, be enjoined and restrained from seeking to enforce the collection of the fi. fas., and, if they are declared to be null and void, that he be enjoined from issuing any fi. fas. against plaintiff until after she has been administratrix for the space of 12 mouths; and that Lucius Harvey be enjoined from enforcing the two fi. fas. The case was heard upon the pleadings and evidence; and the court ordered that the superintendent and the sheriff "be, and they are hereby, restrained, pending further order of the court, as prayed in said petition, from

proceeding to collect said executions by levy and sale of the property of the estate of W. H. Crawford Wheatley. In so far as the question is made as to the executions being issued against the 'estate of W. H. Crawford Wheatley, ' were that the only question made, and upon which I place my judgment, I would provide that said executions may be amended." To this order the defendants excepted. Additional facts will appear in the opinion.

Wallis & Fort, of Americus, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen. (Randolph & Parker and Robt. T. McLarty, all of Atlanta, representing parties at interest not parties to the record), for plaintiffs in error.

W. A. Dodson and Shipp & Sheppard, all of Americus (W. P. George, of Vienna, and H. W. Johnson, of Savannah, representing party at interest not party to record), for defendant in error,

HINES, J. (after stating the facts as above).' [1, 2, 7] 1. Courts should be slow to declare legislative acts unconstitutional. In cases of doubt, the doubt should be resolved in favor of the constitutional validity of legislation. If a construction can be placed upon a statute which will save it from being declared unconstitutional, it is the duty of the courts to adopt such construction and thus save the act from collision with the organic law. If sections, provisions, sentences, or phrases can be stricken therefrom without destroying the general legislative scheme, courts should strike them and leave the remainder thereof intact. Section 20 of article 7 of the act of 1919, creating the department of banking (Laws 1919, p. 160), is attacked as unconstitutional upon two grounds. One is that the language in this section, which prohibits the stockholders of insolvent banks from contesting "the correctness of the estimate made by such superintendent or the amount of such assessment, which estimate and the amount of such assessment shall be final and conclusive upon the stockholders, " denies to the stockholders due process of law, in that it prevents the stockholders from being heard upon the correctness of the amount of the assessment. If this portion of this section is unconstitutional on the ground alleged, should the entire section be declared unconstitutional? It is now the well-settled principle of constitutional construction in this state that, unless the main purpose of the statute, or one of its provisions, is affected by the unconstitutionality of a particular part, the whole act or provision is not thereby defeated. If the statute is in part constitutional and valid, and in part unconstitutional and invalid, and the objectionable portion is so connected with the general scheme that, should it be stricken out, effect cannot be given to the legislative

[115 S.E. 85]

intent, the whole statute, section, or portion must fall; but, where an act cannot be sustained as a whole, the courts will uphold it in part, when it is reasonably certain that to do so would correspond with the main intent and purpose which the Legislature sought to accomplish by its enactment, if, after the unconstitutional part is stricken, there remains enough to accomplish that purpose. An act can be pro tanfo unconstitutional. McArthur v. State, 69 Ga. 444; Elliott v. State, 91 Ga. 696, 17 S. E. 1004; Mattox v. State, 115 Ga. 212 (2) 41 S. E. 709; Hawkins v. State, 146 Ga. 134, 90 S. E. 968; Cain v. Smith, 117 Ga. 902, 44 S. E. 5; Toney v. Macon, 119 Ga. 83, 86, 46 S. E. 80; Bass v. Lawrence, 124 Ga. 75, 52 S. E. 296; Glover v. State, 126 Ga. 594, 55 S. E. 592; Lee v. Tucker, 130 Ga. 43, 60 S. E. 164; Pearson v. Bass, 132 Ga. 117, 63 S. E. 798; Papworth v. State, 103 Ga. 36, 31 S. E. 402; Lippitt v. Albany, 131 Ga. 629, 63 S. E. 33; Carswell v. Wright, 133 Ga. 714, 66 S. E. 905; White v. Forsyth, 138 Ga. 753 (8) 76 S. E. 58; Sister Felicitas v. Hartridge, 148 Ga. 832, 98 S. E. 538; Rogers v. Citizens' Bank, 149 Ga. 568, 101 S. E. 674.

In applying the above principle, this court, in order to preserve the constitutionality of statutes, sections of statutes, and provisions thereof, has stricken sections, has eliminated portions of sections, and even portions of sentences, where this could be done without destroying the general scheme and purpose of the Legislature in enacting laws. The general scheme and purpose of this section of tins act was to furnish a speedy and inexpensive method of enforcing the statutory liability of the stockholders of insolvent banks, and to provide a remedy by which such stockholders could contest such statutory liability when assessments were levied by the superintendent of banks for the purpose of enforcing such liability. The language of this section, which denies to stockholders the right to contest the necessity and amount of such assessments, can be stricken from this section without impairing the general legislative scheme and purpose therein sought to be effectuated. This being so, judicial surgeons should cut out this language, and not destroy the entire body of this section.

But, as we shall undertake to show, this provision of this section is not unconstitutional; and for this reason it will not be necessary for this court to perform such operation upon this section in order to sustain its constitutionality.

2. Is this provision of this section unconstitutional in that it denies due process of law to the stockholders of insolvent banks? It is true that this provision of this section makes the assessments of the superintendent of...