In re Koetting

• Decision Date: 03 April 1895
• Citation: 90 Wis. 166,62 N.W. 622
• Parties: IN RE KOETTING.
• Court: Wisconsin Supreme Court

90 Wis. 166

62 N.W. 622

IN RE KOETTING.

Supreme Court of Wisconsin.

April 3, 1895.

Habeas corpus by John B. Koetting for discharge from imprisonment. The applicant demurred to the sheriff's return. Demurrer overruled.W. C. Williams, T. W. Spence, and P. G. Lewis, for petitioner.

A. W. Bell, Asst. Dist. Atty., W. H. Mylrea, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for respondent.

WINSLOW, J.

John B. Koetting was on the 21st day of July, 1893, the cashier and part owner of the South Side Savings Bank, a state banking corporation then doing a banking business in Milwaukee. He is held in custody by the sheriff of Milwaukee county upon an information charging him with having on said last-named day received for deposit in said bank a certain sum of money, the said bank then being unsafe and insolvent, and he then knowing and having good reason to know that such bank was unsafe and insolvent, contrary to the provisions of section 4541, Rev. St. Upon his application a writ of habeas corpus was issued out of this court, and the sheriff having made return showing that the detention of the petitioner was by virtue of a prosecution under Rev. St. § 4541, as before stated, the petitioner demurred to the return as insufficient in law to justify any imprisonment; claiming that said section is in legal effect an amendment to the banking law of the state, and hence is void, because it has never been submitted to a vote of the people. This is the vital question which is presented for decision in this case, and to this we address ourselves.

The constitution of the state reserves to the people the power to grant bank charters, or enact a general banking law. Sections 4 and 5 of article 11 of the constitution are as follows:

“Sec. 4. The legislature shall not have power to create, authorize or incorporate, by any general, or special law, any bank or banking power or privilege, or any institution or corporation having any banking power or privilege whatever, except as provided in this article.

Sec. 5. The legislature may submit to the voters, at any general election, the question of ‘bank,’ or ‘no bank,’ and if at any such election a number of votes equal to a majority of all the votes cast at such election on that subject shall be in favor of banks, then the legislature shall have power to grant bank charters, or to pass a general banking law, with such restrictions and under such regulations as they may deem expedient and proper for the security of the bill holders. Provided, that no such grant or law shall have any force or effect until the same shall have been submitted to a vote of the electors of the state, at some general election, and been approved by a majority of the votes cast on that subject at such election.”

Pursuant to the provisions of chapter 143 of the Laws of 1851, the question of bank or no bank was submitted to the people at the general election in that year, and decided in the affirmative; and at the following session of the legislature a general banking law was passed, being chapter 479 of the Laws of 1852, which act was ratified by the people at the general election following, and thus became a valid law. This act provided for the election of a bank comptroller, and prescribed his duties, and authorized the formation of associations “to establish offices of discount, deposit and circulation,” and to become incorporated upon certain terms and conditions. This law will be found incorporated in the Revised Statutes of 1878, save so far as it has since been changed. Sanb. & B. Ann. St. § 2024. This act contained no penalties or punishments for fraudulent banking, save a penalty for putting in circulation unauthorized notes or bills. Section 48 of the act provided that no amendment thereto should take effect until submitted to a vote of the people, and approved by a majority of the votes cast on that subject. This court has had occasion in a number of cases to pass upon questions arising under this act and its amendments. State v. Hastings, 12 Wis. 667; Van Steenwyck v. Sackett, 17 Wis. 645;Brower v. Haight, 18 Wis. 102;Rusk v. Van Norstrand, 21 Wis. 161; Bank v. Sherwood, 10 Wis. 174; Porter v. State, 46 Wis. 375, 1 N. W. 78. The result of these decisions, so far as necessary to the present discussion, seems to be the establishment of two general propositions, which may be briefly stated as follows: First, the general banking act cannot be materially amended except by a law submitted to and approved by the people; second, banks organized under that law are subject to general statutes and rules of law, which apply to them alike with other corporations and persons, provided there be no impairment of the powers and privileges given them by the banking law. This was the condition of the law when chapter 213 of the Laws of 1876, entitled “An act to prevent fraudulent banking,” was passed by the legislature. This act provides, in substance, that no banking firm or corporation, or person engaged in the banking business, should receive deposits when insolvent, and, if such deposits were received, the person or officer so receiving such deposit, knowing of such insolvency, should be punished by imprisonment in the state prison not exceeding 10 years, or in the county jail not exceeding 1 year, or by fine not exceeding $10,000, or by both fine and imprisonment. By the revision of the...