Northeast Factor & Discount Co. v. Jackson, 24285

• Decision Date: 20 October 1967
• Docket Number: No. 24285,24285
• Citation: 157 S.E.2d 731,223 Ga. 709
• Parties: NORTHEAST FACTOR & DISCOUNT COMPANY, Inc., et al. v. W. M. JACKSON, Superintendent of Banks.
• Court: Georgia Supreme Court

Page 731

157 S.E.2d 731

223 Ga. 709

NORTHEAST FACTOR & DISCOUNT COMPANY, Inc., et al. v. W. M. JACKSON, Superintendent of Banks.

No. 24285.

Supreme Court of Georgia.

Oct. 20, 1967.

Syllabus by the Court

1. Constitutional attacks upon Acts of the General Assembly will not be passed upon when such a determination is not necessary to protect the rights of a litigant.

2. The plaintiff's petition, alleging that a superior court corporation and an individual were engaged in the banking business when such corporation did not possess authority to do a barking business, was not subject to general demurrer.

3. Where upon the hearing to determine if an interlocutory restraining order should be continued in force the evidence fails to disclose any grounds to continue such restraining order in effect it is an abuse of discretion not to dissolve it.

On May 11, 1966, W. M. Jackson, as Superintendent of Banks of the State of Georgia, filed a bill in equity to enjoin the Northeast Factor & Discount Company, Inc., and James A. Ross from continuing the operation of a private bank (The Exchange Bank) in Ludowici, Ga., and for the appointment of a receiver to liquidate such banking business as directed by the court. A temporary restraining order was issued and after demurrers and an answer, later amended, were filed by the defendants and demurrers to such answer filed by the plaintiff, an interlocutory hearing was held and the temporary restraining order continued and rulings adverse to the defendants on the demurrers were rendered. The defendants now appeal and enumerate as error all the rulings adverse to them.

Alton T. Milam, Atlanta, for appellants.

Arthur K. Bolton, Atty. Gen., Coy R. Johnson, Harold N. Hill, Jr., Asst. Atty. Gens., Robert J. Castellani, Atlanta, for appellee.

NICHOLS, Justice.

1. The first question to be dealt with concerns the plaintiff's demurrers to an amendment filed to the defendants' answer. In such amendment the defendants seek to attack the constitutionality of two amendments to the Georgia Banking Law. One of the amendments to said Act was by its terms not effective until after the filing of the present petition and could in nowise affect the rights of the defendants. An attack made upon the constitutionality of an Act of the General Assembly to be valid must be made by a party whose rights are affected and who therefore has an interest in such Act. See South Georgia Natural Gas Co. v. Georgia Public Service Commission, 214 Ga. 174, 104 S.E.2d 97, and citations.

The remaining statute attacked is Paragraph (a) of Code § 13-204 as amended by the Act of 1960 (Ga.L.1960, p. 1170). The statute attacked reads in part as follows: '(a) No individual, partnership, person, firm, company, or voluntary association, shall carry on or conduct a banking business in this state without being chartered and organized under the Banking Laws of this State or of the United States; provided, however, any private bank or banker lawfully engaged in the banking business prior to the adoption of this section may, upon being in compliance with subsections (b), (c) and (d) hereof and the other provisions of this Title applicable to private banks or bankers, continue to conduct a banking business in the same city, town or community in which he is presently situated and doing a banking business, including the continuous operation of any presently existing private bank by heirs, executors or assigns.' The attack made is that the statute permits corporations to engage in the banking business while prohibiting individuals from so doing. The Fourteenth Amendment to the Constitution of the United States (Code § 1-1815), as well as Art. 1, Sec. 1, Par. XI (Code Ann. § 2-102) and Art. 1, Sec. 1, Par. III (Code Ann. § 2-103), are relied upon to support such attack.

This attack need not be passed upon since, as will be shown hereinafter, the defendants would gain no benefit from a decision declaring such Act unconstitutional. See Hinson v. First National Bank in Waycross, 221 Ga. 408, 144 S.E.2d 765; Daniels v. State, 213 Ga. 833, 834, 102 S.E.2d 27; Cone v. State, 184 Ga. 316, 323, 191 S.E. 250.

2. The trial court did not err in overruling the defendants' demurrers to the plaintiff's petition inasmuch as the petition alleges that the defendants, one an

individual and the other a superior court chartered corporation, have engaged in the banking business by continuing the operation of The Exchange Bank. The Constitution (Art. III, Sec. VII,...