Lankford v. Menefee
| Decision Date | 22 December 1914 |
| Docket Number | 3330. |
| Parties | LANKFORD, STATE BANK COM'R, v. MENEFEE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 9, 1914.
Syllabus by the Court.
Where a company is organized under act approved March 8, 1901 (article 5, c. 11, Laws 1901), relating to trust companies as amended by act approved March 15, 1905 (article 3, c. 10, Laws 1905), and thereafter does a banking business, within the contemplation of act approved March 10, 1899 (Laws 1899 c. 4, § 37), and fails, in a suit by the bank commissioner against a stockholder of said trust company, held, that the extent of defendant's liability is measured by section 16 of the Trust Company Act, and is to the extent only of double the amount that is unpaid upon the stock held by him. Held, further, as the term "corporation" does not include stockholders although defendant be such in a trust company doing also a banking business, he cannot, as such stockholder, be said to be doing a banking business, within the contemplation of act approved March 10, 1899 (chapter 4, Laws 1899, § 37), so as to be chargeable as a stockholder of, a bank organized under the general banking law (act approved March 10, 1899 [chapter 4, Laws 1899]), as revised by act approved March 26, 1908 (chapter 6, Laws 1907-08), and by section 11 of the original and section 9 of the revising act, made liable to the amount of his stock.
Additional Syllabus by Editorial Staff.
As used in the act approved March 10, 1899 (Laws 1899, c. 4, § 37), providing that any individual or firm receiving money on deposit shall be amenable to all the provisions of this act, the words "individual" and "firm" have no reference to stockholders.
Error from District Court, Caddo County; J. T. Johnson, Judge.
Action by J. D. Lankford, State Bank Commissioner, against J. A. Menefee. Judgment for defendant, and plaintiff brings error. Affirmed.
Charles West, Atty. Gen., and Stuart, Cruce & Gilbert, of Oklahoma City, for plaintiff in error.
A. J. Morris, of Anadarko, for defendant in error.
On August 9, 1911, J. D. Lankford, as bank commissioner, commenced this action in the district court of Caddo county. His amended petition substantially states: That on October 17, 1905, the Columbia Bank & Trust Company filed its articles of incorporation with the secretary of the territory of Oklahoma, and soon thereafter commenced to do business in the city of Oklahoma. A copy of said articles of incorporation is thereto attached and marked Exhibit A. That said Columbia Bank & Trust Company was incorporated both under the laws of the territory of Oklahoma, relating to trust companies, and under the laws of the said territory relating to banks, and that said Columbia Bank & Trust Company was incorporated for the purpose both of doing a trust company business and doing a banking business. That, from and after the date on which said company commenced to do business in the territory of Oklahoma and up to the time of its failure in September, 1909, said company engaged in the banking business, both before and after statehood, and, at all times after the date of its organization and up to the time of its failure, received money on both general and special deposit, and conducted a general banking business, subject to the laws of the territory of Oklahoma relating to banks, and subject to the laws of the state of Oklahoma relating to banks.
Plaintiff further states: That there was never any reorganization of said Columbia Bank & Trust Company, but that said bank and trust company continued to do a banking business up to and after statehood, under and subject to the banking laws of the state of Oklahoma, until September 7, 1909, when said Columbia Bank & Trust Company failed, and is now unable to meet, with its assets and credits, its debts and obligations. That said bank commissioner, acting under authority of law, has possession of said Columbia Bank & Trust Company, and the same is now under his control as such for the purpose of luiquidation and settlement of the claims of its creditors. That the liabilities and obligations of said Columbia Bank & Trust Company amount to a very large sum of money, and that, when all the assets and credits of said bank have been subtracted from its total liabilities, a sum of money is left as liabilities, in an amount far greater than the amount of all the stock subscribed and paid in by the stockholders of said bank; the amount of stock so paid in by the stockholders being $200,000. That it is necessary for him, as bank commissioner, to enforce the personal liability of the stockholders of said bank to make good the foregoing deficit. That, at the time said bank was taken over as aforesaid, one J. A. Menefee was the owner of 250 shares of stock of $100 each in said bank, fully paid up, and said Menefee is still the owner of said stock. That, by reason thereof, the said Menefee is still liable to this plaintiff, as bank commissioner, in the sum of $25,000, same being the amount of stock subscribed and paid up by said defendant, and prays judgment for $25,000.
The material part of the charter of the Columbia Bank & Trust Company, filed as Exhibit A, reads:
To this amended petition defendant filed a general demurrer, and the same was, by the court, sustained. Plaintiff elected to stand upon the amended petition, and judgment was thereupon entered in favor of the defendant, from which judgment the plaintiff appeals.
The petition alleges that the Columbia Bank & Trust Company was incorporated both under the laws of the territory of Oklahoma, relating to trust companies, and under the laws of the said territory, relating to banks. This statement of a legal conclusion is not binding upon the court as against a demurrer, unless the law and the petition sustain such allegation. As appears from the face of its charter, said company was, in fact, organized under the laws of the territory of Oklahoma (article 5, c. 11, Sess. Laws 1901), relating to trust companies, as amended by article 3, c. 10, Laws 1905, and the charter recites verbatim section 4 thereof, as amended by article 3, c. 10, Laws 1905.
As section 16, Trust Company Act, provides:
"Each stockholder of a company organized under this act shall be individually and personally liable for the debts of the corporation to the extent only of double the amount that is unpaid upon the stock held by him * * *"
--and this failed bank was organized under this act, this section would seem to be conclusive of defendant's liability as a stockholder therein, but section 37, c. 4, Sess. Laws 1899 (General Banking Act), provides as follows:
"Any individual, firm or corporation, who shall receive money on deposit, whether on certificates or subject to check, shall be considered as doing a banking business and shall be amenable, to all the provisions of this act: Provided, that promissory notes issued for money received on deposit shall be held to be certificates of deposit for the purpose of this act."
And plaintiff in error contends that said section 37 remained a part of the banking law, although the same is not incorporated in the revising statute (Sess. Laws 1907-08). That a revising statute takes the place of all the former laws existing upon the subject with which it deals seems settled beyond controversy. 36 Cyc. 1079, lays down the general rule as to revision as follows:
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