McGinty v. Gormley
| Decision Date | 16 October 1935 |
| Docket Number | 10893. |
| Citation | 183 S.E. 804,181 Ga. 644 |
| Parties | McGINTY v. GORMLEY, Superintendent of Banks. |
| Court | Georgia Supreme Court |
Judgment Adhered to after Rehearing February 22, 1936.
On Rehearing.
Syllabus by the Court.
1. Section 1 of article 16 of the banking act of 1919 (Code 1933, § 13-1701), providing that under certain conditions relating to a bank parties interested might institute proceedings "in the nature of mandamus against the superintendent of banks" in the county in which the bank is located, should not be construed as amending the prior statute as to the venue of civil actions at law to the extent of preventing suit in the county of the defendant's residence.
2. Under the banking laws of this state, the superintendent of banks is vested with a broad discretion in the supervision of banks and in determining when a particular bank should be closed for the purpose of liquidation; and his discretion in such matters will not be interfered with by the courts unless it has been exercised arbitrarily or capriciously and thus grossly abused. This being a suit for the writ of mandamus to compel the superintendent of banks to take possession of a named bank for the purpose of liquidation and the allegations being insufficient to show an abuse of discretion on his part in failing to close the bank, the court did not err in sustaining the general demurrer and dismissing the petition.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Proceeding on the application of J. Roy McGinty, Jr., for a writ of mandamus against R. E. Gormley, Superintendent of Banks. To review a judgment sustaining demurrer to the petition, J. Roy McGinty, Jr., brings error.
Affirmed.
Jesse M. Sellers, of Chatsworth, and Smith, Smith & Bloodworth, of Atlanta, for plaintiff in error.
Dave M Parker, Asst. Atty. Gen., for defendant in error.
J. Roy McGinty, Jr., filed an application for the writ of mandamus in the superior court of Fulton county against R. E. Gormley as superintendent of banks, to require him to take possession of the assets and business of Cohutta Banking Company, of Chatsworth, Ga., and to retain possession thereof until the bank shall be authorized to do business under proper and safe conditions, or until its affairs are liquidated as provided by law, and "to take such other action in the premises as may be appriate." The defendant filed a demurrer, two of the grounds being that the petition did not state a cause of action, and that it shows upon its face that the superior court of Fulton county is without jurisdiction. The court sustained the demurrer on all grounds, and the plaintiff excepted.
1. The first question is whether the venue was properly laid in Fulton county, the Cohutta Banking Company being located in Murray county. We cannot agree with the defendant that the suit could be brought only in the county in which the bank was located. The defendant relies upon two statutes relating to the venue of suits against the superintendent of banks. The banking act of 1919 provided that in the event the superintendent of banks should refuse to issue certain permits or should refuse to do any act or thing authorized or required by the act to be done, the parties affected "may institute appropriate proceedings in the nature of a mandamus against the Superintendent in the Superior Court of the county in which such bank is sought to be incorporated or have its charter amended, renewed or surrendered, to compel him to issue such permit or authority, or to do any such act or thing authorized or required to be done hereunder, which proceeding shall be tried as in other cases of mandamus." Ga.Laws 1919, p. 187, art. 16, § 1; Code 1933, § 13-1701. At the time of the passage of this act there was a statute upon the subject of venue, declaring that "all civil cases at law (except as otherwise provided by law) shall be tried in the county wherein the defendant resides." Civil Code 1910, § 5526; Code 1933, § 3-201. A petition for the writ of mandamus is a civil case in law to which this section is applicable. Did the Legislature intend to repeal or modify this section to the extent of absolutely preventing suit in the county of the defendant's residence so far as it might apply to a case like the present, the official residence of the superintendent of banks being, as declared by law (Code 1933, § 13-308), in Fulton county? Under the proper rules of construction this question must be answered in the negative. Repeals by implication are not favored, and the legislative intent to accomplish that result must be clear. Edalgo v. Southern Railway Co., 129 Ga. 258, 264, 58 S.E. 846; Gray v. McLendon, 134 Ga. 224, 230, 67 S.E. 859. In the absence of express language to that effect, a statute will not be construed as repealing a former one if by any reasonable construction the two may be reconciled. Sampson v. Brandon Grocery Co., 127 Ga. 454, 456, 56 S.E. 488, 9 Ann.Cas. 331. It is also the rule that "a statute instituting a new remedy for an existing right does not take away a pre-existing remedy, without express words or necessary implication; the new remedy is cumulative, and either may be pursued." Southern Railway Co. v. Moore, 133 Ga. 806, 809, 67 S.E. 85, 86, 26 L.R.A. (N.S.) 851. The suit was properly brought in Fulton county. Whether or not the act of 1919, as quoted, is in violation of the constitutional provision stated in the Code 1933, § 2-4306 (Const. art. 6, § 16, par. 6), is a question not presented in the instant case. Hutchings v. Roquemore, 164 Ga. 637, 139 S.E. 216; Bankers' Sav. & Loan Co. v. Better Business Division, 177 Ga. 334, 340, 170 S.E. 291. This conclusion accords with the decision in Berrien County Bank v. Alexander, 154 Ga. 775 (3), 115 S.E. 648; Sayer v. Bennett 159 Ga. 369 (3), 125 S.E. 855.
The defendant also relies upon section 15-A of the act of 1927 (Ga.Laws 1927, p. 206), by which it was declared that "all suits against the Superintendent of Banks, arising out of the liquidation of insolvent banks, shall be brought in the county in which such bank had its principal place of business." This statute is not applicable to the present case, because the suit is not one arising out of liquidation.
2. While the judge sustained the ground of demurrer pertaining to jurisdiction, and to this extent his judgment was erroneous, he at the same time adjudged that the petition did not state a cause of action; and since we are of the opinion that this part of the judgment, considered alone, was a correct termination of the case, we will not reverse the judgment merely because of the error as to jurisdiction. On the merits, it is insisted by the plaintiff that the allegations of fact showed it to be the duty of the superintendent to take charge of this bank for the purpose of liquidation, and that he had no discretion to do otherwise. The defendant contends, on the other hand, that he had a discretion in the premises and that the petition failed to show any abuse of discretion such as would authorize the courts to interfere. We agree with the defendant in this contention. The petition alleged that Cohutta Banking Company was the treasurer or county depository of Murray county, and that the bank had paid out the funds of the county in a large amount on checks drawn by one not authorized to act for the county in such matters. See McGinty v. Pickering, 180 Ga. 447, 179 S.E. 358. The petition further alleged that in consequence of these transactions "the said bank is liable to Murray county for all of said unlawful and improper disbursements, and said bank is in an unsafe and unsound condition to transact the business for which it was organized, and it is unsafe for it to continue business; and the superintendent of banks should in the proper and lawful discharge of his duties, forthwith take possession of all the assets and business of said bank, and retain possession thereof, until said bank shall be authorized by him to resume business upon such conditions as may be approved by the defendant, or until its affairs be liquidated as provided by law." It was further contended that the capital stock had become impaired to the amount of more than...
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