State ex rel. Davis v. Peoples State Bank of Anselmo

• Decision Date: 16 November 1923
• Docket Number: 23328
• Parties: STATE, EX REL. CLARENCE A. DAVIS, ATTORNEY GENERAL, v. PEOPLES STATE BANK OF ANSELMO. W. L. MCCANDLESS, COUNTY TREASURER, APPELLEE, v. STATE OF NEBRASKA ET AL., APPELLANTS
• Court: Nebraska Supreme Court

196 N.W. 912

111 Neb. 126

STATE, EX REL. CLARENCE A. DAVIS, ATTORNEY GENERAL, v. PEOPLES STATE BANK OF ANSELMO.

W. L. MCCANDLESS, COUNTY TREASURER, APPELLEE, v. STATE OF NEBRASKA ET AL., APPELLANTS

No. 23328

Supreme Court of Nebraska

November 16, 1923

APPEAL from the district court for Custer county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

O. S Spillman, Attorney General, and Sullivan, Squires & Johnson for appellants.

Jacob Fawcett and N. T. Gadd, contra.

William C. Schaper and Halligan, Beatty & Halligan, amici curiae.

Heard before MORRISSEY, C. J., LETTON, DEAN, DAY and GOOD, JJ REDICK and SHEPHERD, District Judges. GOOD, J., Morrissey, C. J., and LETTON, J., dissenting.

OPINION

DAY, J.

The Peoples State Bank of Anselmo, Custer county, Nebraska, hereinafter referred to as the "bank," was a duly organized banking corporation under the laws of this state, with a capital stock of $ 15,000. The bank became insolvent, and on June 9, 1921, a receiver was duly appointed to wind up its affairs. At the time the bank failed, W. L. McCandless, as county treasurer of Custer county, had on deposit therein $ 44,000. As county treasurer, McCandless duly filed a claim for this amount with the receiver, asking that it be allowed and paid out of the depositors' guaranty fund of the state. The attorney general, in behalf of the department of trade and commerce, objected to the payment of the full amount out of the guaranty fund, but conceded that the guaranty fund was liable to the claimant for $ 7,500, being 50 per cent. of the capital stock of the bank. An arrangement was made by which the sum of $ 7,500 was paid forthwith out of the guaranty fund. As to the remainder, to-wit, $ 36,500, an issue was tendered by the state and the receiver, denying the liability of the guaranty fund for reasons which will hereinafter be discussed. The trial resulted in a judgment in favor of McCandless. An order was made by the court directing the department of trade and commerce to pay to the receiver $ 36,500 out of the depositors' guaranty fund, and that the receiver pay that amount to W. L. McCandless, county treasurer, for the use and benefit of Custer county. From this judgment the state and the receiver have appealed.

The important question presented by the record is whether the guaranty fund is liable for the payment of the amount deposited in the bank by the county treasurer in excess of 50 per cent. of the capital stock of the bank. A determination of this question involves an examination of several statutory provisions.

Sections 6191 and 6193, Comp. St. 1922, in force at the time of the transaction now under consideration, among other things, provide:

Section 6191: "It shall be the duty of the county board to act on such application or applications of any and all banks, state, national or private, as may ask for the privilege of becoming the depository of such moneys, as well as to approve the bonds of those selected incident to such relation, and the county treasurer shall not deposit such money or any part thereof in any bank or banks other than such as may have been so selected by the county board for such purposes, if any such bank or banks have been so selected by the county board. * * * And where more than one bank may have been so selected by the county board for such purpose, he shall not give a preference to any one or more of them in the money he may so deposit, but shall keep deposited with each of said banks, such a part of the moneys as the paid-up capital stock of such bank is a part of the amount of all the paid-up capital stock of all the banks so selected, so that such moneys may at all times be deposited with said banks pro rata as to their paid-up capital stock."

Section 6193: "For the security of the funds so deposited under the provisions of this article the county treasurer shall require all such depositories to give bonds for the safe-keeping and payment of such deposits and the accretions thereof, which bond shall run to the people of the county and be approved by the county board and conditioned that such depository shall, at the end of each and every month, render to the treasurer and county board a statement in duplicate, showing the several daily balances and the amounts of moneys of the county held by it during the month, and the amount of the accretion thereof, and how credited. * * * No person in any way connected with any depository bank as officer or stockholder shall be accepted as a surety on any bond given by said bank. * * * The treasurer shall not have on deposit in any bank at any time more than the maximum amount of the bond given by said bank in cases where the bank gives a guaranty bond, nor in any bank giving a personal bond more than one-half of the amount of the bond of such bank, and the amount so on deposit at any time with any such bank shall not in either case exceed fifty per cent. of the paid-up capital stock of such bank. * * * Where banks located in the county refuse or neglect to bid on said money, or where there are not banks in the county, or where the banks located in the county have not sufficient capital stock to receive said money, * * * then any surplus over the fifty per cent. that banks in the county may receive shall be deposited in banks outside of the county having sufficient capital stock under the same conditions and terms as if in the county."

These sections of the statute in their present form are the outgrowth of prior legislation relating to the general subject of depositing state and county funds. The first act was passed in 1891. It required the county treasurer to deposit and at all times keep on deposit for safe-keeping in the state or national banks doing business in the county money belonging to the several current funds of the county. Section 8 of this act provided that banks desiring to become depositories should give bond for the safe-keeping and payment of deposits and accretions thereof, and limited the amount that the treasurer should have on deposit in any bank at any one time to one-half the amount of the bond given by the bank. Laws 1891, ch. 50. In 1907 section 8, above referred to, was amended, limiting the amount which might be deposited by the treasurer, so that it should not exceed 50 per cent. of the capital stock of the bank in which the deposit was made. Laws 1907, ch. 39. This same section was again amended in 1909 (Laws 1909, ch. 35) and, as amended, comprises section 6193, Comp. St. 1922. In 1909 the legislature passed an act, the outstanding features of which were provisions for the regulation, supervision and control of the banks organized under the laws of the state, and the establishment of a guaranty fund for the protection of depositors. By this act the general supervision of the state banks, and the administration of the guaranty fund which was raised by an assessment upon all of the state banks, was placed in the hands of the state banking board. Laws 1909, ch. 10. By later enactment the supervision of banks and the administration of the guaranty fund is placed in the hands of the department of trade and commerce. In 1911 (Laws 1911, ch. 8) the legislature amended several sections of the act of 1909, among them section 46, now section 8027, Comp. St. 1922. The amendment, so far as pertinent to the question now in hand, is as follows: "No bank which has complied in full with all of the provisions of this article shall be required to give any further security or bond for the purpose of becoming a depository for any public funds, but depository funds shall be secured in the same manner that private funds are secured." It will be observed that section 6193, Comp. St. 1922, above quoted, not only provides that banks desiring to become depositories of public funds shall give bond for the safe-keeping and payment of money deposited by the county treasurer, but also places a limitation upon the amount which a county treasurer may legally have on deposit in any bank at any one time. The limitation of the amount is fixed by clear language. In precise terms it states: "And the amount so on deposit at any time with any such bank shall not in either case (referring to the kind of bond given) exceed fifty per cent. of the paid-up capital stock of such bank."

It is urged by the appellee, however, that the effect of section 8027, Comp. St. 1922, is to repeal the provisions of section 6193, in so far as it relates to state banks. The argument is made that the substitution of the guaranty fund as provided in section 8027, in lieu of the bond required in section 6193, by implication repeals that part of section 6193 limiting the amount of deposits to 50 per cent. of the paid-up capital stock of such banks. We think it must be admitted that sections 6193 and 8027 are in pari materia, and in any event must be construed together. An examination of the two sections shows that the only provisions thereof wherein there is an inconsistency is that relating to the giving of a bond. Section 6193 clearly provides for the giving of bonds by state as well as...