Noble State Bank v. Haskell

Decision Date11 September 1909
Docket NumberCase Number: 83
PartiesNOBLE STATE BANK v. HASKELL et al. *
CourtOklahoma Supreme Court
Syllabus

¶0 1. BANKS AND BANKING--Depositors' Guaranty Fund. Constitutionality--Due Process of Law. The act "creating a state banking board, establishing a depositors' guaranty fund to insure depositors against loss when the banks becomes insolvent," etc., of December 17, 1907 (Laws 1907-08, p. 153, c. 6 art. 2), as amended on February 12, 1908 (Laws 1907-08 p. 153, c. 6, art 3), is not in conflict with section 7, art. 2 (Bunn's Ed. Sec. 16) of the Constitute which provides that 'No person shall be deprived of life, liberty, or property, without due process of law."

2. SAME--Obligation of Contracts. Nor is it in violation of section 15, art 2 (Bunn's Ed. Sec. 24) of the Constitution, which provides that "no law impairing the obligation of contracts shall ever be passed."

3. SAME--Pursuit of Happiness. Nor is it in violation of section 2, art. 2 (Bunn's Ed. Sec. 11) of the Constitution, which provides that "all persons have the inherent right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry."

4. SAME--Taking Private Property for Private Use. Nor is it in violation of section 23, art. 2 (Bunn's Ed. Sec. 32) of the Constitution, which provides that: "No private property shall be taken or damaged for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining or sanitary purposes, in such manner as may be prescribed by law."

5. SAME--Taking Private Property for Public Use. Nor is it in violation of section 24, art. 2 (Bunn's Ed. Sec. 33) of the Constitution or damaged for public use without just compensation."

6. SAME--Statutes--Title of Act. Nor is said act, embracing the provision relative to the establishment of the depositors' guaranty fund, to secure depositors against loss when the bank becomes insolvent invalid on account of section 57, art. 5 (Bunns's Ed. Sec. 130) of the Constitution, which provides that: "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except * * * ; provided, that if any subject be embraced in any act contrary to the provisions of this section, such act be void only as to so much of the law as may not be expressed in the title thereof."

7. APPEAL AND ERROR--Review--Waiver of Error. When the brief of the plaintiff in error, in any civil cause, fails to preserve, by specification of error, any point complained of in the lower court, such question is thereby waived in this court.

8. SAME--Review--Denial of Injunction. Where the probative allegations do not aver that the injury apprehended is irreparable, and the chancellor denies an application for a temporary injunction, on review in this court the action of the lower court will not be reversed.

* Appealed to the Supreme Court of the United States.

September, 1908, Decided

Error from District Court, Logan County; A. H. Huston, Judge.

Action by the Noble State Bank against C. N. Haskell and others. Judgment for defendants and plaintiff brings error. Affirmed.

This is a proceeding by plaintiff in error, as plaintiff, seeking to reverse the judgment of the district court sustaining the demurrers of the defendants in error, as defendants, in the lower court to plaintiff's petition. The constitutionality of an act of the Legislature of this state creating a depositor's guaranty fund is involved. The petition, omitting the caption and exhibits, is as follows:

"Comes the plaintiff in said cause, and for its cause of action against the defendants states the following facts:

"(1) The said plaintiff is a corporation organized under the laws of the territory of Oklahoma.

"(2) The defendant C. N. Haskell is the Governor of the state of Oklahoma, the defendant G. W. Bellamy is the Lieutenant Governor, the defendant J. P. Connors is the President of the State Board of Agriculture, the defendant J. A. Menefee is the State Treasurer, the defendant M. E. Trapp is the State Auditor, and the defendant H. H. Smock is the Bank Commissioner, of the state of Oklahoma.

"(3) The said plaintiff is a banking corporation organized under the laws of the territory of Oklahoma, with an authorized and paid-up capital stock of $ 10,000, and its articles of incorporation were filed in the office of the Secretary of the territory of Oklahoma on the 23d day of May, 1902, a copy of said articles of incorporation being hereto attached, marked 'Exhibit A' and referred to as a part of this petition. On said 23d day of May, 1902, the territory of Oklahoma issued to said plaintiff a patent, a copy of which is hereto attached, marked 'Exhibit B.' and referred to as a part of this petition, and on the 7th day of July. 1902, the Bank Commissioner of the territory of Oklahoma issued to said plaintiff a certificate of authority, as required by the laws of said territory, a copy of which is hereto attached, marked 'Exhibit C,' and referred to as a part of this petition.

"(4) The said plaintiff has continuously since the 23d day of May, 1902, in the town of Noble, county of Cleveland, Okla., been engaged in the business of banking, as authorized by law, and its authority by virtue of its articles of incorporation, patent, and certificate of authority; and since the 16th day of November, 1907, said plaintiff, in the same place, has been engaged in the banking business under and by virtue of the Constitution and laws of the state of Oklahoma.

"(5) On the 17th day of December, 1907, the Governor of the state of Oklahoma approved an act which had previously been passed by the Legislature of the state of Oklahoma, entitled 'An act creating a state Banking Board establishing a depositors' guaranty fund to insure depositors against loss when the bank becomes insolvent prescribing the qualifications of officers and directors, fixing the salary of Bank Commissioner and his assistants and providing for more frequent examinations, fixing the penalty for embezzlement, limiting the amount of the banking funds that can be loaned to any one person, corporation or firm, declaring an emergency.' Laws 1907-08, p. 145. c. 6, art. 2. Section 1 of said act provides that, 'A state banking board is hereby created, to be composed of the Governor, the Lieutenant Governor, President of the State Board of Agriculture. State Treasurer and the State Auditor,' and the defendants C. N. Haskell, G. W. Bellamy, J. P. Connors, J. A. Menefee, and M. E. Trapp are, respectively the Governor, Lieutenant Governor, the President of the State Board of Agriculture, the State Treasurer, and the State Auditor, and the said named defendants by virtue of said act, constitute the State Banking Board of the state of Oklahoma, and the said defendant H. H. Smock is the Bank Commissioner of the state of Oklahoma.

"(6) By section 2 of said act it is provided that: 'Within sixty days after the passage and approval of this act, the State Banking Board shall levy against the capital stock an assessment of one per cent. of the bank's daily average deposits, less the deposits of the state funds, properly secured for the preceding year, upon each and every bank organized and existing under the laws of the state, for the purpose of creating a depositors' guaranty fund. Said assessment shall be collected upon call of the State Banking Board. In one year from the time the first assessment is levied, and annually thereafter, each bank subject to the provisions of this act shall report to the Bank Commissioner the amount of its average daily deposits for the preceding year, and if said deposits are in excess of the amount upon which the one per cent. was previously paid, said report shall be accompanied by additional funds to equal one per cent. of the said daily average excess of deposits, less the deposits of the national government for the year over the preceding year, and each amount shall be added to the depositors' guaranty fund. If the depositors' guaranty fund is depleted from any cause, it shall be the duty of the State Barking Board in order to keep said fund to one per cent. of the total deposits in all of the said banks subject to the provisions of this act, to levy a special assessment to cover such deficiency, which special assessment shall be levied upon the capital stock of the banks subject to this act, according to the amount of their deposits as reported in the office of the Bank Commissioner. And said special assessment shall become immediately due and payable,' And the plaintiff states that said State Banking Board, acting under and pursuant to the pretended authority of said law, has levied an assessment against the capital stock of this plaintiff bank of one per cent. of its daily average deposits during the preceding year, which said average deposit amounts to $ 33,147, and that the said State Banking Board and the said Bank Commissioner, under and pursuant to said pretended law, proposes to compel this plaintiff to pay said one per cent. of its daily average deposits for the preceding year for the purpose of creating said depositors' guaranty fund for the benefit of the depositors of all the banks in said state upon which said law operates, and that the said defendants, unless restrained by this court, will force this plaintiff to pay said assessment, as provided by said pretended law, a copy of the said notice of assessment served on plaintiff is hereto attached, marked 'Exhibit D,' and referred to as a part of this petition.

"(7) Plaintiff further states that the said law under which the defendants are pretending to act is in conflict with and a violation of section 2 of article 2 of the Constitution of Oklahoma, which provides that 'all persons have the inherent right to life, liberty, the pursuit of happiness and the enjoyment of...

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