Harrison v. Skinner

• Decision Date: 18 October 1938
• Citation: 83 P.2d 437,160 Or. 43
• Parties: HARRISON <I>v.</I> SKINNER
• Court: Oregon Supreme Court

160 Or. 43

83 P.2d 437

HARRISON

v. SKINNER

Supreme Court of Oregon.

Argued September 27, 1938.

Affirmed October 18, 1938.

Banks and banking — Stockholder's liability

1. The duty of a stockholder of a bank to pay an additional assessment in event bank's capital becomes impaired is a contractual one.

Banks and banking — Double liability

2. The constitutional and statutory provisions relating to double liability of holders of bank stock are parts of the purchase contracts of all such stock.

Banks and banking — Validity of assessment

3. A stockholder of an insolvent bank was not entitled to recover the amount of an assessment which he had theretofore paid in satisfaction of his statutory liability and which he alleged was invalid because made without notice to the stockholders and without affording them opportunity to restore the impaired capital of the bank, in absence of statute or provision of purchase contract reciting the purported conditions.

Banks and banking — Stockholder's liability

4. A stockholder of an insolvent bank, who sought to recover an allegedly invalid assessment which he had theretofore paid in satisfaction of his statutory liability, was not entitled to determination as to the validity of lien afforded by statute, in absence of averment that stockholder possessed any property subject to the statutory lien, or that the superintendent of banks asserted any lien or that stockholder suffered any damage by virtue of the statute.

Banks and banking — Validity of assessment

5. The validity of assessment of stockholder of insolvent bank in amount of his statutory liability was not affected by alleged invalidity of statute directing that after liquidation of an insolvent bank the remaining assets shall be distributed among the stockholders in proportion to the several holdings of stock.

Statutes — Construction

6. The invalidity of one part of a statute does not necessarily deprive other parts of their validity.

Banks and banking — Liquidation

7. The statute directing that after completion of liquidation of an insolvent bank the remaining assets shall be distributed among the stockholders in proportion to the several holdings of stock is invalid, since it permits noncontributing stockholders to share in sums paid by those who have met their assessments.

Banks and banking — Insolvency

8. A stockholder of an insolvent bank who has satisfied his statutory liability is entitled, if there are any funds left after satisfaction of the depositors' claims and debts, to be repaid before any stockholder who has not paid such liability is entitled to a dividend from proceeds of bank.

Banks and banking — Stockholder's liability.

9. The expenses of liquidation of an insolvent bank are incurred for the "benefit of the depositors" within meaning of constitutional provision providing that the added liability of stockholders exists for the "benefit of the depositors", so that expenses incidental to liquidation are properly chargeable to sums paid by the stockholders on their added liability and must be deducted before determining whether anything remains for the stockholders.

                  See 7 Am. Jur. 81
                  7 C.J. Banks and Banking, § 78
                

In Banc.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Controversy submitted without action, by William L. Harrison against Mark Skinner, as superintendent of banks of the state of Oregon, to determine plaintiff's right to recover the amount of an allegedly invalid assessment which plaintiff had paid as stockholder of a bank. Judgment in favor of defendant, and plaintiff appeals.

AFFIRMED.

William L. Harrison, of Portland, in pro. per.

S.J. Graham, of Portland (F.P. Keenan, of Portland, on the brief), for respondent.

ROSSMAN, J.

This is an appeal from a judgment of the circuit court entered in a controversy submitted without action pursuant to the provisions of §§ 2-1301 to 2-1303, both inclusive, Oregon Code 1930. The statement of facts signed by the parties recites that April 17, 1932, the plaintiff owned 11 shares of the corporate stock of the Mt. Scott State Bank which had $50,000 capital, represented by 500 shares. On that day the board of directors of the bank, acting pursuant to § 22-1902, Oregon Code 1930, placed its business and assets under the control of the defendant, superintendent of banks of this state, for liquidation. After the defendant had assumed charge he found that the bank's assets were insufficient to the extent of $80,928.25 to meet its deposit liabilities, and thereupon levied an assessment against its stockholders to the amount of the par value ($100) of the stock owned by each. The plaintiff paid the full amount of the assessment levied against him, $1,100. Later he made a demand upon the defendant for repayment "upon the ground that said assessment was and is wholly void". The demand was refused. According to the statement of facts, the plaintiff believed that the assessment was invalid because it was made without notice to the stockholders, without affording them opportunity to restore the impaired capital, and because § 22-2017, Oregon Code 1930, directs that after liquidation has been completed the remaining assets be distributed to the stockholders in proportion to their stock ownership. The judgment of the circuit court was in favor of the defendant. The plaintiff appealed.

1-3. The plaintiff argues that since the defendant gave to the stockholders no notice of his intention to impose a stock assessment before he levied it, and afforded them no opportunity to make good the deficiency existing in the bank's capitalization, his order imposing the levy was invalid. The duty of a stockholder of a bank to pay an additional assessment in the event the bank's capital becomes impaired is a contractual one. Article XI, section 3, Oregon Constitution, and the provisions of our banking laws concerning double liability are parts of the purchase contracts of all bank stock. If the stockholder's duty concerning the added liability is favored by the conditions suggested by the plaintiff, he ought to have been in a position to point to some statute or provision of the purchase contract which recites the purported conditions. The only statutory provisions which he has cited are §§ 22-1802, 22-1903 and 22-1904, Oregon Code 1930, which we have read without finding any condition of the kind mentioned by him. Skinner v. Davis, 156 Or. 174 (67 P. (2d) 176); Hibernia Securities Co. v. Pirie, 149 Or. 434 (41 P. (2d) 431); Hansen v. Harris, 145 Or. 487 (28 P. (2d) 649); and State Bank of Portland v. Gotshall, 121 Or. 92 (254 P. 800, 51 A.L.R. 1200), recognize no condition of the kind upon which the plaintiff relies. To the contrary, each of them holds that the decision of the superintendent of banks concerning the necessity of an assessment and its amount is conclusive; in other words, it is not subject to an attack of...