Skinner v. Davis

• Decision Date: 20 April 1937
• Citation: 156 Or. 174,67 P.2d 176
• Parties: SKINNER, State Superintendent of Banks, v. DAVIS et al.
• Court: Oregon Supreme Court

67 P.2d 176

156 Or. 174

SKINNER, State Superintendent of Banks, v. DAVIS et al.

Supreme Court of Oregon

April 20, 1937

In Banc.

Appeal from Circuit Court, Coos County; James T. Brand, Judge.

Action by Mark Skinner, as State Superintendent of Banks, against Carl L. Davis and others and A. E. Adelsperger and others. From the judgment, the plaintiff appeals.

Affirmed.

S. J. Graham and F. P. Keenan, both of Portland (Liljeqvist, Swanton & McKeown, of Marshfield, on the brief) for appellant.

Albert B. Ridgway, of Portland (Ridgway, Johnson & Kendall, of Portland, on the brief), for respondents Carl L. Davis et al.

Claud H. Giles, of Marshfield, for respondent Harry Nasburg.

W. U Douglas, of Marshfield, for remaining respondents.

BAILEY Justice.

This proceeding was instituted by the superintendent of banks of the state of Oregon, as plaintiff, against Carl L. Davis and other stockholders within the state of Oregon of the Bank of Southwestern Oregon, of Marshfield, and the Attorney General of this state, for a declaratory judgment as to the duties and powers of the plaintiff as statutory liquidator of that bank, and the rights and obligations of the defendant stockholders.

The following statement is substantially as set forth in the amended complaint: The bank was organized March 12, 1917 under the banking laws of this state, and ever since then until about January 18, 1932, was engaged in banking business. Its capital stock was divided into 1,000 shares of the par value of 100 dollars each, all of which were, prior to that date, subscribed for by numerous individuals to whom certificates therefor were issued. Only one of those owners of stock had acquired his holding, amounting to 10 shares, subsequent to the effective date of the 1931 enactment to which reference is hereinafter made. On January 18, 1932, the board of directors of the bank, pursuant to and in accordance with the provisions of section 22-1902, Oregon Code 1930, turned over to the superintendent of banks the business and assets of the bank for liquidation.

Paragraph XVI of the amended complaint contains the following allegations: "That on or about the 29th day of January, 1932, the then superintendent of banks of the state fo Oregon without first having made a finding or determination that a stock assessment of $100.00 per share was required and necessary to pay the deposit liabilities and said bank and acting pursuant to section 31, chapter 278, Oregon Laws 1931 [page 470], levied an assessment upon the stockholders of said bank in the sum of $100.00 per share. That a correct copy of said stock assessment is attached hereto, marked Exhibit 'A' and by reference made a part hereof just as though it were fully set forth herein."

Exhibit A above mentioned is headed, "In the circuit court of the state of Oregon for the county of Coos," and is entitled, "In the matter of the liquidation of the Bank of Southwestern Oregon, Marshfield, Oregon." It recites the placing of the bank in the hands of the superintendent for liquidation and states that the bank was "closed for liquidation without first paying the deposit liabilities in full." The exhibit further sets forth the names and addresses of all stockholders, with the number of shares of stock owned by each, and continues thus: "Now therefore, in consideration of the above and in accordance with provisions of section 31, chapter 278, General Laws of Oregon 1931 [page 470], I, A. A. Schramm, superintendent of banks of the state of Oregon, hereby levy an assessment on each of the above listed stockholders of the Bank of Southwestern Oregon, Marshfield, Oregon, individually and not one for another for the benefit of the depositors of said bank to the amount of their stock of the par value thereof, namely in the sum of $100 per share." (Italics supplied.) It then recites that the assessment is to be paid within thirty days from the date of the levy and shall bear interest at the rate of 6 per cent. per annum from that date until paid.

Pursuant to this assessment the stockholders of the bank paid to the superintendent of banks the sum of $34,124.45. Twelve of the stockholders paid the entire amount assessed against them, totaling $18,562. Five paid the entire amount levied against them, totaling $4,260.66, and all accrued interest thereon, amounting to $74.80. Three of the stockholders paid under protest the total amount of their respective assessments, aggregating $2,456 principal and $81.26 interest. Eight stockholders paid only a small part of their respective assessments.

Action was instituted against two of the stockholders who had failed to pay assessments levied against them, and judgment was entered against them for the full amount of their respective assessments, less a small sum paid by one of said stockholders. Only small sums have been paid of the judgments so entered.

The superintendent of banks, pursuant to an order made by the circuit court having supervision of the liquidation of the bank, entered into a compromise agreement with four stockholders. One of them had paid the full amount of his assessment and the compromise affected only the amount of interest to be paid. Other compromises with two stockholders provided for payment by them of one-half and less than one-tenth, respectively, of the principal assessed against them. As to the fourth compromise, the assessment was for $2,300, of which $1,300 had been paid on the principal and in addition $258.63 interest, before the compromise was made. The agreement therein provided for the payment of $956 in settlement of the alleged balance due.

Four of the remaining stockholders had not paid anything at the time the compromise was affected. One of these paid, under the agreement, the full amount of principal, with $40 interest. Another paid $200 on an assessment of $208. The third paid $300 on an assessment of $520. And the fourth paid $125 on a $416 assessment. These four owned both fractional and whole shares of stock.

The amended complaint, after setting forth the foregoing facts, avers that on February 19, 1935, this court in the case of Hibernia Securities Company v. Pirie, 149 Or. 434, 41 P.2d 431, 439, held that section 31 of chapter 278, page 470, Oregon Laws 1931, was unconstitutional and void as to holders of bank stock who had acquired their stock previous to the effective date of said statute in so far as it authorized an assessment of 100 per cent. on stock without a finding and determination by the superintendent of banks that said assessment was required and necessary to pay deposit liabilities.

Thereafter, it is alleged, the plaintiff herein, who had succeeded A. A. Schramm as superintendent of banks, made a finding and determination that the assets of said bank were insufficient to pay its deposit liabilities and that such deficiency amounted to the sum of $52,250, and he accordingly levied an assessment on all the stockholders of the bank for the benefit of depositors, in the sum of $52.25 per share. A copy of this assessment, containing the names and addresses of all stockholders, together with the number of shares owned by each, was also attached to and made a part of the amended complaint.

The plaintiff avers that as superintendent of banks he is entitled "to retain for the benefit of the depositors of said bank all moneys, principal and interest, paid by the stockholders by reason and on account of the first stock assessment as set forth in exhibit 'A' attached hereto;" and that the defendant stockholders "contend that they are entitled to the return of all sums of money paid by them on account of said first stock assessment, including interest thereon from the date such assessments were made, until repayment." As a basis for a declaratory judgment the plaintiff alleges that he takes the position "that the said second stock assessment as set forth in exhibit 'B' attached hereto is a valid assessment," while "the defendant stockholders and each of them, contend that said second stock assessment is wholly void." The amended complaint also sets forth various other contentions of the superintendent of banks and what he believes those of the defendant stockholders to be. These include the argument advanced by the stockholders to the effect that, if the second assessment is valid, then they are entitled to a refund of all sums paid by them on the first assessment, and the contention of the superintendent that section 154, chapter 207, page 375, Oregon Laws 1925, which is codified as section 22-2101, Oregon Code 1930, and which was sought to be amended by section 31, chapter 278, page 470, Oregon Laws 1931, was in full force and effect and permitted the second assessment which was made.

The plaintiff prays for a decree of the court to the effect: (1) That the plaintiff as superintendent of banks is entitled to retain for the benefit of depositors all sums paid to him on account of the first assessment; (2) that the second stock assessment is valid; (3) that the superintendent of banks is entitled to credit upon the second assessment all sums paid on the first assessment, and, in the event that any stockholder has paid a greater sum under the first stock assessment than required under the second, the superintendent of banks is entitled to retain all money so paid, for the benefit of depositors; (4) that certain parts of section 22-2101, supra, are now in force and effect; (5) that section 20 of chapter 227, page 329, Oregon Laws 1933, which is an amendment of section 22-2101, supra, as amended by section 31, chapter 278, supra, is in full force and effect, with certain exceptions mentioned; (6) that the superintendent of banks is authorized and empowered to sell, subject to approval of the circuit court, the...