Ex parte Wisner
| Decision Date | 16 December 1907 |
| Citation | 36 Mont. 298 |
| Parties | Ex parte WISNER. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Application by G. S. E. Wisner for writ of habeas corpus. Complainant discharged.
W. B. Rodger and J. H. Duffy, for applicant.
Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for respondent.
Chapter 11, tit. 13, Penal Code of this state, bears the following chapter heading, so called: “Fraudulent Insolvencies by Corporations, and Other Frauds in Their Management.” Section 986 of that chapter reads as follows: “Every officer, agent, teller or clerk of any bank, and every individual banker, teller or clerk of any individual banker, who receives any deposits, knowing that such bank or association or banker is insolvent, is guilty of a felony.” The section heading, so called, referring to section 986, is: “Receiving Deposits in Insolvent Banks.” The county attorney of Deer Lodge county filed in the district court of that county an information against the above–named complainant, G. S. E. Wisner, basing said accusation upon section 986, just quoted. The information in its charging part reads thus: “G. S. E. Wisner, the defendant above named, is accused by John H. Tolan, county attorney of Deer Lodge county, state of Montana, by this information, of the crime of receiving deposits, knowing individual banker to be insolvent, a felony, committed as follows: That the said G. S. E. Wisner, on or about the 3d day of August, 1906, at the county of Deer Lodge, state of Montana, did then and there unlawfully, willfully and feloniously receive and accept the sum of four hundred ($400) dollars, as a cash deposit from Walter Reynolds, the said cash deposits being then and there lawful money of the United States and the property of the said Walter Reynolds; the said cash deposits mentioned aforesaid being then and there received and accepted by the said defendant for and on behalf of one M. J. Fitz Patrick, and the said M. J. Fitz Patrick, being then and there an individual banker, and the said defendant being then and there clerk and agent of the said M. J. Fitz Patrick, the said defendant as clerk and agent of the said M. J. Fitz Patrick receiving and acceptingthe deposits mentioned aforesaid, then and there knowing that the said M. J. Fitz Patrick was then and there insolvent, and the said M. J. Fitz Patrick being then and there insolvent, contrary to the form, force, and effect of the statute in such case made and provided and against the peace and dignity of the state of Montana.” The defendant was convicted and sentenced to the penitentiary. The sentence was stayed, however, pending an appeal to this court, by the trial court signing a certificate of probable cause for the appeal, and defendant is now in the custody of the sheriff of Deer Lodge county. He has filed his petition for a writ of habeas corpus, alleging that he is restrained of his liberty by the sheriff, illegally, for the reason that the judgment of his conviction is null and void, because the district court “had no jurisdiction of the pretended offense attempted to be charged in the information, and said information charges an offense unknown to the laws of the state of Montana.”
It is argued by complainant's counsel that the only kind of banks known to, and authorized by, the laws of this state, are banks incorporated under the laws of the state and private banks, and that the only kind of bankers known to, and authorized by, the laws of the state, are those connected with incorporated banks and those known as private bankers; that “individual bankers” were at the time it is alleged this offense was committed, and are now, wholly unknown to, and unauthorized by, the laws of this state, and could not and did not exist in the state; that the term “individual banker” does not mean private banker. Both California and Idaho have statutes almost identical with ours, but they have never been construed by the courts of those states. The term “individual banker” appears to have been first employed in the state of New York as far back as the year 1840, at least. Laws New York, 1840, p. 306, c. 363. In the case of the People v. Doty, 80 N. Y. 225, decided in 1880, the court held that the term “individual banker,” as used in the provisions of an act of the New York Legislature, passed in 1875, relating to savings banks, which declared it “not to be lawful for any bank, banking association, or individual banker to advertise or put forth a sign as a savings bank,” applied only to one who had availed himself of the banking statutes of the state and had become empowered to do banking thereunder, and did not apply to a private banker who exercised in his business no more than the rights and privileges common to all. In the case of Perkins v. Smith, 116 N. Y. 441, 23 N. E. 21, decided in 1889, the same court said: In the case of Hall v. Baker, 66 App. Div. 131, 72 N. Y. Supp. 965, the court said: “The distinction between an individual banker and a private banker is well known and recognized in all our statutes and by the decisions of the court.”
The “individual banker,” in his capacity as such, was a creature of the New York statute. He enjoyed certain privileges, as, for instance, the right to issue circulating notes under certain conditions; and he was subject to restrictions, as, among others, that he was compelled to make reports to the controller, by whom his books, papers, and accounts were subject to examination, and he was obliged to have a fixed place of business in some certain city or town. So well defined had the term “individual banker” become in the legal phraseology in the state of New York that the Legislature of that state, in 1892, three years before the adoption of our Codes, passed a law embodying the definition in the following words: “The term, ‘individual banker,’ when so used, means a person who has complied with the requirements of law and is authorized by the banking department to engage in the business of banking and is subject to the supervision of the superintendent of banks and the banking law.” And in 1902 the Penal Code of that state was amended so as to make it a misdemeanor for any officer, agent, teller, or clerk of any bank, banking association, or savings bank, or any individual banker or agent, or any private banker or agent, to receive deposits knowing the bank, association, or banker to be insolvent. Parker's New York Criminal & Penal Code, Annotated 1906, p. 238, § 601. It appears, therefore, that the term “individual banker” had a well–defined legal and technical meaning, both by judicial construction and statutory enactment, in the sister state of New York, at the time our section 986, Pen. Code, supra, was adopted; that the term “private banker” also had a popular meaning and a definite legal meaning other than that given to the term “individual banker.” But our laws do not provide for any such legal entity as an individual banker; whereas, it is a matter of common knowledge that we have private bankers and private banking copartnerships in this state, and did have prior to the adoption of the Codes in 1895. It is therefore contended by the Attorney General that the Legislature in adopting our Codes, § 986, could not have intended to include therein a person unknown to our law, to wit, an “individual banker” as known in New York, but must have used the words in their popular sense, as meaning one person banking alone, or a private banker. This, however, is not an unanswerable argument. In passing, it may be remarked that such an interpretation of the section would exclude from the operation thereof an association of private bankers doing business as copartners, because such persons would not be engaged as individuals, and, further, that the chapter in terms includes joint–stock associations, which latter were not provided for, in the Codes, at the time of their adoption. Montana is a comparatively young state, and we know that many of our statutes and Code provisions were taken from the laws of other commonwealths. Indeed, the effort was made to incorporate in our laws, so far as local conditions made it advisable, all of the best regulations relating to modern forms of government, as found in the statutes of the different states of the Union. It is not a violent or unreasonable presumption that the Legislature, in adopting the Codes, intended to provide, so far as possible, laws that should be comprehensive in terms and not necessary of amendment in order to meet succeeding changes of condition as the state developed, and the provisions of particular statutes thereafter to be enacted. Courts have heretofore acted upon this presumption. In the case of Ritchey v. People, 22 Colo. 251, 43 Pac. 1026, the court said: “The strongest argument against this conclusion arises from the fact that in this state we have never had corporal punishment in the sense in which it is herein defined, but this argument loses much of its force when we remember that many of our statutes were taken from states where the great body of the law is essentially different.” And the court held that the term “corporal punishment” in a statute meant punishment upon the body, such as whipping, rather than punishment of the body, such as imprisonment, despite the fact that there was no law of the state providing for punishment upon the body in any case. But in this discussion we are, at most, dealing only with presumptions in...
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