Gormley v. Searcy
| Decision Date | 14 September 1934 |
| Docket Number | 10082. |
| Parties | GORMLEY, Superintendent of Banks, v. SEARCY. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Court of Appeals has jurisdiction of questions of law involving general application of unambiguous constitutional provisions and not involving construction of doubtful constitutional provision or constitutionality of law.
In execution proceeding to enforce special bank stockholder's liability, where affidavit of illegality stated that statutes, if merely renewing special charters in question without subjecting corporation to provisions of general law, were violative of designated provisions of Constitution, and exception to judgment overruling demurrer to illegality stated that construction placed on statutes violated unambiguous constitutional provisions, no constitutional question within Supreme Court's jurisdiction was presented.
Where no constitutional question was raised and assignments referred to questions reviewable only by Court of Appeals case was transferred from Supreme Court to Court of Appeals.
Error from Superior Court, Spalding County; Blanton Fortson, Judge.
Execution proceeding by R. E. Gormley, Superintendent of Banks, in charge of the liquidation of the Griffin Banking Company against Mrs. Agnes S. Searcy, wherein defendant filed an affidavit of illegality. To review a judgment sustaining the affidavit of illegality and dismissing the levy, plaintiff in execution brings error.
Transferred to the Court of Appeals.
This case arose upon an affidavit of illegality interposed by Mrs Agnes S. Searcy to the levy of an execution against her issued by the superintendent of banks in charge of the liquidation of the Griffin Banking Company, to enforce a special stockholders' liability in excess of the 100 per cent. liability provided for in the general banking law The affidavit, as twice amended, alleged substantially that the execution of August 18, 1933, issued illegally, because:
(1) On March 23, 1933, the Griffin Banking Company was placed in the hands of the superintendent of banks.
(2) On June 5, the superintendent issued an execution based upon an assessment of 100 per cent. pro rata on each stockholder, which was paid by deponent.
(3) On August 18 the superintendent issued the present execution based on an additional assessment of 220 per cent. pro rata on each stockholder.
(4) Under the two assessments the superintendent is seeking to collect from deponent 320 per cent. of her stock holdings. The 220 per cent. assessment is proceeding illegally, for the following reasons:
(5) The Griffin Banking Company was organized under a special charter granted by an act approved October 26, 1870 (Ga. L. 1870, p. 114).
(6) The material parts of the charter were: (a) The bank was incorporated for a period of thirty years, and no provision was made in the charter for an amendment or renewal. (b) The bank was authorized to do a general business as a bank. (c) The capital stock was $100,000, with power in the stockholders to increase the same to $500,000; provided, the corporators might commence business as soon as $50,000 had been paid in by the stockholders. (d) The liability of the stockholders was provided as follows: "The individual property of the stockholder, at the time of suit, shall be liable for the ultimate payment of the debts of the company in proportion to the amount of stock owned by each stockholder." Section 2.
(7) At the time the charter was granted there was no general law prescribing the powers, duties, and liabilities of such companies, and the Legislature was authorized to grant corporate powers and privileges to banking companies by special act. Subsequently the Constitution adopted in 1877, as amended in 1891, contained the following provisions: Article 3, § 7, par. 18: Civ. Code 1910, § 6446. Article 1, § 4, par. 1: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." Civ. Code, § 6391. Article 4, § 2, par. 3: "Every amendment of any charter of any corporation in this State, or any special law for its benefit, accepted thereby, shall operate as a novation of said charter and shall bring the same under the provisions of this Constitution." Section 6465. Article 1, § 3, par. 2: "No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grants of special privileges or immunities, shall be passed." Section 6389.
(8) On October 21, 1891 (Acts 1891, p. 172) the Legislature enacted a "general law for incorporation of banks," which provided "that all banking companies hereafter chartered in this State shall have and exercise the powers, and be subject to the liabilities and restrictions, hereinafter specified." This act was amended on December 20, 1893 (Acts 1893, p. 78), and again on December 14, 1895 (Acts 1895, p. 54), and was supplemented by an act approved December 20, 1893 (Acts 1893, p. 70), entitled "An Act to carry into effect paragraph 18 of section 7 of article 3 of the Constitution of 1877, as amended, in relation to chartering of banks." One provision of the act of 1891 is: "That said corporation shall be responsible to its creditors to the extent of its capital and its assets, and each stockholder shall be individually liable for all the debts of said corporation, to the extent of his or her unpaid shares of stock, and said stockholder shall be further and additionally individually liable, equally and ratably, and not one for another, as sureties, to depositors of said corporation for all moneys deposited therein, in an amount equal to the face value of their respective shares of stock, it being the true intent and purpose of this section of this Act, that, as to depositors, for all moneys deposited with said corporation, there shall be an individual liability upon such stockholders in such corporation, over and beyond the par value of his or her original shares of stock, equal in amount to the face value of said shares of stock." Section 6. The liability of shareholders in banking companies, as prescribed by the general law for the incorporation of banks in the act of 1891, has never been changed and is the same today under the general banking law adopted in 1919 (Acts 1919, p. 135) as amended.
(9) After the adoption of the constitutional amendment contained in article 3, section 7, par. 18, and the passage of the general banking laws above referred to, the Legislature passed other laws which permitted banking companies organized under special legislative charters enacted prior to the general banking law to amend and renew their charters as a matter of right, and without the unanimous consent of the stockholders by applying to the Secretary of State. A list of such laws, material to the present suit are: Ga. L. 1893, p. 88: "An Act to provide for the renewal of all charters heretofore granted by the General Assembly of Georgia by special Acts to banking * * * companies." Ga. L. 1895, p. 52, as amended, which authorized any such banking company to amend its special charter by changing its corporate name, etc. Ga. L. 1896, p. 55: "An Act to provide for the uniform amendment of special charters of banks heretofore granted by the General Assembly of this State, so as to incorporate into said special charters any provision of the general law for the incorporation of banks," etc. Ga. L. 1919, p. 135, known as the banking law as amended, which gave to banking companies, organized under special charters, all of the rights of amendment and renewal conferred by the previous laws, and in addition gave (a) the right to establish branch banks, and (b) the right to consolidate or merge with other banks. Ga. L. 1920, p. 102, which gave to banks organized under special charters the right to acquire all the powers and privileges of a trust company.
(10) The above laws conferred upon the Griffin Banking Company a vested right to amend and renew its special charter, and to establish branch banks, and to consolidate or merge with other banks, which rights it did not have under its charter.
(11) On October 24, 1900, the charter of the Griffin Banking Company, which would have expired on October 26, 1900, was renewed for a period of thirty years. Said renewal was granted by the Secretary of State, under the provisions of the act of 1893.
(12) Prior to April 5, 1911, the capital stock of the Griffin Banking Company was only $50,000; and notwithstanding the fact that the special charter granted in 1870 provided that "the capital stock of said company shall be $100,000, with power in the stockholders to increase the same to an amount not exceeding the sum of $500,000," the bank applied for and obtained an amendment to its charter, as renewed on October 24, 1900, giving it the right to increase its capital stock from $50,000 to $100,000, under the provisions of an act of the legislature approved August 22, 1907.
(13) On June 12, 1916, the charter of the Griffin Banking Company was amended by changing the number of the board of directors and the date of the annual meeting of the stockholders, under the provisions of an act approved December 21, 1897.
(14) On April 15, 1926, the charter was amended by changing the number of the board of directors, and granting to said...
To continue reading
Request your trial