Mee v. Hirning (In re Mee)

• Citation: 189 N.W. 675,45 S.D. 582
• Decision Date: 31 August 1922
• Docket Number: No. 5085.,5085.
• Parties: In re MEE et al. MEE et al. v. HIRNING, Superintendent of Banks, et al.
• Court: Supreme Court of South Dakota

45 S.D. 582

189 N.W. 675

In re MEE et al.MEE et al.

v.HIRNING, Superintendent of Banks, et al.

No. 5085.

Supreme Court of South Dakota.

Aug. 5, 1922.

Rehearing Denied Aug. 31, 1922.

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Application by James Mee and another for a writ of prohibition against John Hirning, as Superintendent of Banks, and others, as members of the Depositors' Guaranty Fund Commission. From judgment sustaining demurrer to petition and motion to quash, plaintiffs appeal. Affirmed.

See, also, 187 N. W. 540.H. E. Judge and S. K. Grigsby, both of Sioux falls, for appellants.

Byron S. Payne, Atty. Gen., for respondents.

SHERWOOD, J.

This is an action brought by James Mee and James S. Thomson against John Hirning, as superintendent of banks of the state of South Dakota, and John Hirning, M. Plin Beebe, C. H. Lien, and William Hoese, as members of and constituting the depositors' guaranty fund commission of the state of South Dakota, for a writ of prohibition restraining said defendants from admitting the Farmers' Security State Bank of Centerville, S. D., under the depositors' guaranty fund of this state, and restraining the superintendent of banks from issuing a certificate authorizing the said Farmers' Security State Bank of Centerville to commence business.

Plaintiffs allege in their petition that the plaintiff James S. Thomson is one of the stockholders of the Bank of Centerville, and the plaintiff James Mee is one of the stockholders of the First National Bank of Centerville, in this state; that both plaintiffs are citizens, residents, and taxpayers of said city of Centerville and state of South Dakota; that the First National Bank of Centerville is a banking corporation organized and existing under the laws of the United States, and the Bank of Centerville is a banking corporation organized and existing under the laws of this state, and both said banks have been transacting the business of banking in the town of Centerville, in this state, and had their principal places of business therein for more than 20 years, and during that time no other bank has been established therein; that Centerville has approximately 1,100 population, and within a radius of 15 miles lie the cities of Davis, Hurley, Viborg, Irene, Wakonda, and Beresford, and that each of these cities has at least two banks; that the First National Bank of Centerville has a capital stock of $100,000 and the Bank of Centerville has a capital stock of $50,000; that said two banks have furnished complete and adequate banking facilities to the citizens and residents of Centerville and the territory naturally tributary thereto; that neither the size of Centerville nor the banking business transacted in the town and territory adjacent warrants or justifies an additional bank, and that the establishment of a third bank would result in great damage and irreparable injury to plaintiffs and to said banks; that the bank of Centerville has been admitted under the depositors' guaranty fund as provided by law, and, if the Farmers' Security State Bank should be admitted under the depositors' guaranty fund, and receive a certificate to do business, the deposits of such Farmers' Security State Bank would be guaranteed in part by the assets of the petitioner James S. Thomson; that John Hirning is superintendent of banks of South Dakota; that John Hirning, M. Plin Beebe, C. H. Lien, and William Hoese constitute the depositors' guaranty fund commission of this state; that, on or about the 13th of February, 1920, the Secretary of State issued to the Farmers' Security State Bank a corporate charter evidencing the corporate existence as a state bank of said Farmers' Security State Bank; that the Farmers' Security State Bank has made application to the depositors' guaranty fund commission of south Dakota for admission under the depositors' guaranty fund, and has made application to the superintendent of banks of this state for a certificate authorizing it to commence the banking business; and that such application was made prior to the commencement of this action.

The petition further recites that more than a year has elapsed since the issuance of said charter to the Farmers' Security State Bank, and that the depositors' guaranty fund commission of South Dakota did not within one year after the issuance of the charter admit and has not admitted the Farmers' Security State Bank under the depositors' guaranty fund of South Dakota, and that the superintendent of banks did not issue and has not issued to the Farmers' Security State Bank a certificate authorizing said bank to commence business, and that the Farmers' Security State Bank has failed to open for business in the city of Centerville or elsewhere within one year from the date on which its charter was issued, and has forfeited its charter, and has no further legal existence.

It further alleges, on information and belief, that, unless prevented by this court, the depositors' guaranty fund commission intend to and will admit said Farmers' Security State Bank under the depositors' guaranty fund, and the superintendent of banks, unless restrained, intends to and will issue a certificate authorizing said Farmers' Security State Bank to commence business in Centerville; that petitioners have protested to the superintendent of banks against admitting the Farmers' Security State Bank, because said Farmers' Security State Bank no longer has any corporate existence, but, notwithstanding such protest, such officers will admit said bank unless restrained by the court; and allege that neither the superintendent of banks nor the depositors' guaranty fund have any power or authority under the law to give to the Farmers' Security State Bank a certificate of authority or to admit it under the depositors' guaranty fund of the state; allege that the plaintiffs have no plain, speedy, or adequate remedy at law; and ask an order preventing said superintendent of banks and said depositors' guaranty fund commission from issuing or giving to the Farmers'...