Syllabus
by the Court.
The act
"creating a state banking board, establishing a
depositors' guaranty fund to insure depositors against
loss when the bank becomes insolvent," etc., of December
17, 1907 (Laws 1907-08, p. 145, 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. § 16)
of the Constitution, which provides that "No person
shall be deprived of life, liberty, or property, without due
process of law."
Nor is
it in violation of section 15, art. 2 (Bunn's Ed. § 24)
of the Constitution, which provides that "no law
impairing the obligation of contracts shall ever be
passed."
Nor is
it in violation of section 2, art. 2 (Bunn's Ed. § 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."
Nor is
it in violation of section 23, art. 2 (Bunn's Ed. § 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."
Nor is
it in violation of section 24, art. 2 (Bunn's Ed. § 33)
of the Constitution, which provides that "private
property shall not be taken or damaged for public use without
just compensation."
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 (Bunn's Ed. §
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 shall be void
only as to so much of the law as may not be expressed in the
title thereof."
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.
[Ed
Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and
Error, §§ 4256-4261.]
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.
[Ed.
Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and
Error, § 3818.]
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 1he 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 depositors' 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
hereunto 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,
Okl., 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 state funds properly secured, and 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 Banking Board in order to keep said fund to
one per cent. of the total deposits in all of tire 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 the 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 1 per cent. of its
daily average deposits during the preceding year, which said
average deposit amounts $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 1 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
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