Dunn v. Love

• Decision Date: 05 June 1934
• Docket Number: 31010
• Citation: 172 Miss. 342,155 So. 331
• Court: Mississippi Supreme Court
• Parties: DUNN et al. v. LOVE

155 So. 331

172 Miss. 342

DUNN et al. v. LOVE

No. 31010

Supreme Court of Mississippi

June 5, 1934

Suggestion Of Error Overruled, October 1, 1934.

APPEAL from the chancery court of Lee county HON. JAMES A. FINLEY Chancellor.

Proceedings by J. S. Love, State Superintendent of Banks, opposed by B L. Dunn and others, for the reorganization of the People's Bank & Trust Company of Tupelo. From a decree granting the petition, the opponents appeal. Decree affirmed.

See also, 295 U.S. 64.

Affirmed.

Geo. T. and Chas. S. Mitchell, of Tupelo, and E. C. Sharp, of Jackson, for appellants.

Constitutions do not change with the varying tides of public opinion and desires; the will of the people therein recorded is the same inflexible law until changed by their own deliberate action; and it cannot be permissible to the courts that, in order to aid evasions and circumventions, they shall subject these instruments to a construction, as if they were great public enemies standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.

Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1, Am. Dec. 1915C, 200; Bay City v. State Treasurer, 23 Mich. 499; Cooley's Const. Lim. (7 Ed.), p. 107.

An unconstitutional law cannot be upheld because it is highly beneficial.

Busser v. Snyder, 282. Pa. St. 440, 128 A. 80, 37 A.L.R. 1515.

While section 251 of the Laws of 1932 was repealed by Senate Bill No. 227 of the Acts of the Legislature of 1934, which act was approved on April 2, 1934, prior to the decision in this case, section 3 of the original act was brought forward into the new law, and shows conclusively it was never the legislative intent to deprive the depositors of any right to any of the assets of a closed bank.

Section 3 of Chapter 251 of the Laws of 1932 is plain and unambiguous.

Where the language used in a statute is plain, the court cannot read words into it that are not found therein, either expressly or by fair implication, even to save its constitutionality, because this would be legislation, and not construction.

Mellen Lbr. Co. v. Industrial Corp., 154 Wis. 114, 142 N.W. 187, Ann. Cas. 1915B 997, L.R.A. 1916A 374; Castle v. Mason, 91 Ohio St. 296, 110 N.E. 465, Ann. Cas. 1917A 164.

The police power, broad as it is, cannot justify the passage of a law or ordinance which runs counter to the limitations of the Federal Constitution.

Buchanan v. Warley, 45 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, Ann. Cas. 1918A 1201, L.R.A. 1918C 210; People v. Owen, 122 N.E. 132; Spann v. Dallas, 111 Texas 350, 235 S.W. 512, 19 A.L.R. 1387; Fitzhugh v. City of Jackson, 132 Miss. 585; Davis v. Minor, 1 How. 183, 28 Am. Dec. 325; Leslie v. Phipps, 49 Miss. 790; Reid v. Federal Land Bank, 166; Miss. 392, 148 So. 392; Everett v. Williamson, 163 Miss. 848, 143 So. 690; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407; Opinion of the Attorney-General rendered on April 17, 1934; Thompson v. Grand Gulf Ry. & Pkg. Co., 2 How. 240, 34 Am. Dec. 81; State v. Armstead, 103 Miss. 290, 60 So. 778; Building & Loan Association v. Blaisdell, 78 L.Ed. 413.

It appears to us that that part of the decree which provides that the stockholders' liability which is paid in shall be invested in new stock and become the absolute property of stockholders without any right of recourse on the part of the depositors, is in direct conflict with the rule laid down in the case of Davidson v. Board of Administrators, 96 U.S. 97, 24 L.Ed. 616.

Mo. Pac. Ry. Co. v. State of Nebraska, 164 U.S. 402, 41 L.Ed. 489.

Whatever else may be uncertain about the definition of the term "due process of law," all authorities agree that it inhibits the taking of one man's property and giving it to another, contrary to settled usage and modes of procedure, and without notice or an opportunity for a hearing.

Ochoa v. Hermandez, 230 U.S. 139, 33 S.Ct. 1033; Nebbia v. State of New York, 78 L.Ed. 940, 961; Ex parte Milligan, 4 Wall. 2, 120, 18 L.Ed. 281, 295; Adams v. Tanner, 244 U.S. 590, 61 L.Ed. 1336, 37 S.Ct. 662, L.R.A. 1917F 1163, Ann. Cas. 1917D 973; Buchanan v. Warley, 246 U.S. 60, 62 L.Ed. 149, 38 S.Ct. 16, L.R.A. 1918C 210, Ann. Cas. 1918A 1201; Southern Ry. Co. v. Virginia, 78 U.S. 186; Adkins v. Children's Hospital, 261 U.S. 525, 545, 67 L.Ed. 785, 43 S.Ct. 394, 24 A.L.R. 1238; Wolff Packing Co. v. Court of Industrial Relations, 267 U.S. 552, 69 L.Ed. 785, 45 S.Ct. 441; Williams v. Standard Oil Co., 278 U.S. 735, 73 L.Ed. 287, 42 S.Ct. 115, 60 A.L.R. 596; National Bank v. Flershem, 78 L.Ed. 388; Board of Supervisors v. Lumber Co., 103 Miss. 325, 60 So. 326; Hendrickson v. Apperson, 38 S.Ct. 44; Von Hoffman v. City of Quincey, 4 Wall. 535, 18 L.Ed. 403; 6 R. C. L. 328; 7 R. C. L. 366; Farrington v. State of Tennessee, 95 L.Ed. 558; Vanderbilt v. Brunton Piano Co., 169 A. 177, 89 A.L.R. 1080; Sneve v. Hagan, 250 N.W. 271.

J. Thomas Dunn, of Meridian, for appellant, Mrs. Birdie Lowry Dunn.

Comes Mrs. Birdie Lowry Dunn, one of the appellants in the above styled cause, by her counsel, and moves the court to dismiss such cause, insofar as her appeal is concerned, and in support of the motion respectfully shows the following: That she is satisfied to abide by the decree of the lower court in this matter, and, therefore, desires to dismiss the appeal heretofore perfected herein.

Creekmore & Creekmore, of Jackson, for appellee.

Banks are corporations of quasi-public nature.

Bank of Oxford v. Love, 111 Miss. 699, 72 So. 133; Noble State Bank v. Haskell, 219 U.S. 104, 55 L.Ed. 112; Christensen v. Merchants & Marine Bank, 150 So. 375.

Chapter 251, Laws of 1932, is constitutional.

Chapter 11849, Acts of 1927 (Florida); McConville v. Fort Pearce Bank & Trust Co., 135 So. 392; Chapter 104, Laws of 1925 (South Dakota); Farmers & Merchants Bank v. Tomlinson, 225 N.W. 305; Chapter 28, Laws of 1925 (Minnesota); Hoff v. First State Bank, 218 N.W. 238; Paul v. Farmers & Merchants Bank, 245 N.W. 832; Dorman, Bank Commissioner, v. Dell, 52 S.W.2d 892; Milner v. Gibson, 61 S.W.2d 273; Nagel v. Ghingher, Bank Commissioner, 171 A. 65; Hessen Siak Shams v. Nebraska State Bank, 49 F.2d 894; Barber v. Bryan, 243 N.W. 834; Love v. Mangum, 160 Miss. 590, 135 So. 223; Abie State Bank v. Weaver, 75 L.Ed. 690; State v. Smith, Superintendent of Banks, 234 N.W. 764; Witherspoon v. State, 138! Miss. 310, 103 So. 134; Section 3814, Code of 1930.

The release of certain stockholders from statutory liability is valid.

Smith, Superintendent of Banks, v. Texley, 205 N.W. 307; Shaw v. Little Rock & Ft. Smith Ry. Co., 25 L.Ed. 757; Nagel v. Ghingher, Bank Commissioner, 171 A. 65; Christensen v. Merchants & Marine Bank, 150 So. 375.

Court takes judicial notice of prior proceedings in the same cause.

Keeton v. Robinson, 144 Miss. 899, 110 So. 839; DeBearn v. Safety Deposit Co., 233 U.S. 24, 56 L.Ed. 833; National Fire Ins. Co. v. Thompson, 281 U.S. 331, 74 L.Ed. 891; St. Louis San Francisco Ry. Co. v. Burns, 24 F.2d 66; Donald v. White, 68 F.2d 441.

Flowers, Brown & Hester, of Jackson, and C. R. Bolton, of Tupelo, for appellee.

One who does not belong to the class that might be injured by a statute cannot raise the question of its invalidity or unconstitutionality.

Red Valley National Bank v. Craig, 45 L.Ed. 94; Maxey v. State, 140 Miss. 570; Wilkinson v. Warren County, 146 Miss. 727; Dart v. Gulfport, 147 Miss. 534; 12 C. J. 762; Railroad Co. v. Shott, 110 Miss. 304-5.

Chapter 251, Laws of 1932, does not impair the obligation of the depositors' contract for the reason that it provides that all of the assets of the closed bank "shall be held by the bank and collected for the benefit of its depositors and creditors."

The enactment of chapter 251, Laws of 1932, was a valid exercise by the Legislature of the police power and right to legislate for the general welfare, which right is not abridged by its incidental effect upon private contracts.

Noble State Bank v. Haskell, 55 L.Ed. 112; Christensen v. Merchants & Marine Bank of Pascagoula, 150 So. 375.

Banks are subject to such regulations as the state may lawfully impose in the exercise of its police power to protect the public welfare, where there are feasible reasons of public policy for them.

Holden v. Hardy, 169 U.S. 366, 42 L.Ed. 780; Minnesota Iron Co. v. Kline, 199 U.S. 593, 50 L.Ed. 322; Miller v. Wilson, 236 U.S. 373, 59 L.Ed. 628; St. Louis Poster Adv. Co. v. St. Louis, 249 U.S. 269, 63 L.Ed. 599.

Contracts must yield to the public welfare when the latter is appropriately declared and defined and the two conflict.

Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.S. 372, 63 L.Ed. 309; East v. Van Deman & L. Co., 240 U.S. 342, 60 L.Ed. 679; Meningault v. Springs, 199 U.S. 473, 50 L.Ed. 274; Chicago & A. R. Co. v. Tranbarger, 238 U.S. 67, 59 L.Ed. 1204; A. C. L. Ry. Co. v. Goldsbora, 58 L.Ed. 721.

Police power has long since been adjudicated by this court to include more than the justification of legislative acts in the interest of protecting the health, safety, and morals of the community.

Sligh v. Kirkwood, 59 L.Ed. 835; McConville v. Ft. Pierce Bank & Trust Co., 135 So. 392; Osborn v. Nicholson, 13 Wall. 654, 20 L.Ed. 689; 3 R. C. L. 379; Noble State Bank v. Haskell, 55 L.Ed. 112; Christensen v. Merchants & Marine Bank, 150 So. 375; A. T. & S. R. Ry. Co. v. U.S. 76 L.Ed. 273; Brown Holding Co. v. Feldman, 65 L.Ed. 877; 810 West Avenue, Inc., v. Henry Stern, 66 L.Ed. 595; Sliasberg v. New York Life Ins. Co., 244 N.Y. 482, 155 N.E. 749, 756.

Chapter 251, Laws of 1932, is a...