Bodie v. Pollock, No. 23299.

• Court: Supreme Court of Nebraska
• Writing for the Court: PER CURIAM.
• Citation: 195 N.W. 457,110 Neb. 844
• Parties: BODIE v. POLLOCK.
• Docket Number: No. 23299.
• Decision Date: 20 October 1923

110 Neb. 844
195 N.W. 457

BODIE
v.
POLLOCK.

No. 23299.

Supreme Court of Nebraska.

Oct. 20, 1923.

Syllabus by the Court.

Sections 4 and 7, art. 12, of the Constitution, are self-executing when considered together, as they have been and should be; and, so considered, they form a complete constitutional rule to the effect that, while stockholders in banks are subject to the double liability set out in said sections, such liability cannot be enforced until the property of the bank has been exhausted, and the amount justly due judicially determined.

Since the time when the liability of a bank stockholder can be enforced is definitely fixed by the Constitution, no other time for the enforcement of that liability can be prescribed by the Legislature so long as the Constitution stands unchanged.

Appeal from District Court, Cass County; Begley, Judge.

Action by Fred E. Bodie, receiver of the Bank of Cass County, against T. H. Pollock. From an order sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

[195 N.W. 457]

Gaines, Van Orsdel & Gaines, of Omaha, for appellant.

Crossman, Munger & Barton, of Omaha, for appellee.

Heard before MORRISSEY, C. J., LETTON, DEAN, DAY, and GOOD, JJ., and REDICK and SHEPHERD, District Judges.

PER CURIAM.

Plaintiff was receiver of the Bank of Cass County, which was insolvent. Before the assets of the bank were exhausted and without any judicial determination that said assets were insufficient to pay the creditors, he brought an action against the defendant Pollock, a stockholder, for a sum equal to the face value of the latter's stock, alleging in his petition that it was necessary to enforce the double liability of the stockholders in order to pay out. The defendant demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action, and because it showed on its face that the action was prematurely brought. The demurrer was sustained and plaintiff brings the case here for review.

It is conceded in the briefs and upon argument that the petition was sufficient except that it was not alleged therein that the bank assets had been exhausted and that the proper judicial determination as to the amount due had been made. The question is, therefore, may a receiver bring his action against the stockholders when the bank is adjudged insolvent, as the appellant receiver contends, or must he wait until the assets are exhausted and a judicial determination has been made of the exact amount justly due, as the trial court found?

[1] The law of double liability is found in section 7, art. 12, of the Constitution, and is as follows:

“Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors over and above the amount of stock by him held to an amount equal to his respective stock or shares so held, for all its liabilities accruing while he remains such stockholder.”

It is the contention of the appellant that this provision is not self-executing and must be construed in connection with the legislative enactment of 1919 to give it effect. The following is the legislative enactment in question, found in section 8015, Comp. St. 1922:

“Every stockholder in a banking corporation shall be individually liable to its creditors, over and above the amount of stock by him held, to an amount equal to his respective stock or shares so held, for all its liabilities accruing while he remains such stockholder. In case any stockholder shall sell, transfer or dispose of such stock, knowing that such bank is insolvent, he shall be deemed the owner of such stock, and liable thereon the same as if such stock had not been sold, transferred or disposed of; and such liability may be enforced whenever such banking corporation shall be adjudged insolvent without regard to the probability of the assets of such insolvent bank being sufficient to pay all of its liabilities.”

But, though the doctrine so contended for--that the constitutional provision is not

[195 N.W. 458]

self-executing--is supported in a way by much respectable authority, this court has held to the contrary. In a case involving the liability of a stockholder in a banking corporation, it was expressly declared that the provisions of said section 7 of the Constitution are enforceable without supplementary statutory enactments. Farmers' Loan & Trust Co. v. Funk, 49 Neb. 353, 68 N. W. 520. It is true that the provision standing alone may lack the completeness necessary to make it self-operating. This is the point upon which a number of courts have held somewhat similar constitutional provisions inoperative of themselves. But construing the section with another section of the Constitution, section 4 of the same article, any lack of this kind is supplied and the section becomes of itself fully operative in so far as to provide for the enforcement of the double liability referred to therein. The language of said section 4 is:

“In all cases of claims against corporations and joint stock associations, the exact amount justly due shall be first ascertained, and after the corporate property shall have...