State, ex rel. Farmers State Bank of Pickrell v. Hevelone

• Decision Date: 16 January 1913
• Docket Number: 17,533
• Citation: 139 N.W. 636,92 Neb. 748
• Parties: STATE, EX REL. FARMERS STATE BANK OF PICKRELL, APPELLEE, v. ELMER L. HEVELONE, COUNTY TREASURER, APPELLANT
• Court: Nebraska Supreme Court

139 N.W. 636

92 Neb. 748

STATE, EX REL. FARMERS STATE BANK OF PICKRELL, APPELLEE, v. ELMER L. HEVELONE, COUNTY TREASURER, APPELLANT

No. 17, 533

Supreme Court of Nebraska

January 16, 1913

APPEAL from the district court for Gage county: LEANDER M PEMBERTON, JUDGE. Affirmed.

AFFIRMED.

F. O McGirr and M. W. Terry, for appellant.

Field Ricketts & Ricketts and Hazlett & Jack, contra.

OPINION

BARNES, J.

The relator is a state bank, organized and doing business under the provisions of the banking act of 1909, and the respondent is the county treasurer of Gage county, Nebraska. The relator brought this suit to compel the respondent, as county treasurer, to deposit with it its pro rata share of public funds made by him as such treasurer, without giving other security for the safe-keeping of such deposits than that provided for by the depositors' guaranty fund, as required by the guaranty bank act under which it was organized and is doing business. The respondent demurred to the petition. The demurrer was overruled, and he stood on his demurrer. Thereupon, it was ordered that the writ issue in accordance with the prayer of the relator's petition. The respondent has appealed, and the sole question for our determination is whether the relator is required to give security under what is known as the "depository law," in addition to the security provided by the banking act, and known as the "depositors' guaranty fund," to be entitled to participate in the deposit of public funds.

It must be conceded that if the relator was not required to give the depository bond provided for by section 20, art. III, ch. 18, Comp. St. 1891, which is a part of the depository law of 1891, in addition to its compliance with the provisions of the banking act of 1909, in order to entitle it to participate in the deposit of public funds, the judgment of the district court should be affirmed. The appellant contends, however, that so much of the depository law of 1891, known as section 20, art. III, ch. 18, Comp. St. 1891, is still in force; that the bond therein mentioned should have been given by the relator before it would be entitled to receive on deposit its proportionate share of the public funds. On the other hand, the relator insists that the section above mentioned was repealed by the banking act of 1909, as amended in 1911. An examination of the legislation bearing upon this question may aid in its solution. The act authorizing the deposit of public funds was passed in 1891. Laws 1891, ch. 50. That act was amended in 1907, and comprises, as amended, sections 11364-11374, Ann. St. 1907, and will be hereafter referred to as the "depository act." The provisions of that act, so far as they have any bearing upon the questions under consideration, were that banks, in order to become depositories of public funds, are required to give approved security for the safe-keeping and return of such funds. In 1909 the legislature passed an act, entitled "An act for the regulation, supervision and control of the business of banking, and to provide penalties for its violation." Laws 1909, ch. 10 (Ann. St. 1909, secs. 3700-3792). That act covers the entire subject of the organization, control and supervision of the business of banking in this state, and will be referred to hereafter as the "banking act." The distinctive features of that act, and the principal inducement to its passage, are the provisions made therein for a depositors' guaranty fund, which is created and administered under the provisions of the state banking board, to secure deposits made in such banks, whether of public or private funds. It necessarily follows, if state banks, in addition to maintaining a depositors' guaranty fund, must give approved security when the deposits are public funds, they are required to give double security for the deposits of such funds.

The banking act makes no express reference to the depository act; but it is provided by the banking act that the depositors' guaranty fund shall secure all deposits of public funds as well as private funds, and it may reasonably be presumed that the legislature did not intend the deposits of public funds should be doubly secured, first, by the depositors' guaranty fund, and, second, by approved security as provided by the depository act. It appears, however, that, in order to avoid any misunderstanding upon that question, the legislature of 1911 amended the banking act of 1909, and among the sections thus amended was section 46. Section 46 as it stood before the amendment of 1911, was as follows: "As soon as said assessments are respectively levied, the banking corporation against which the same are levied shall be notified of the amount of such assessment levied against them, respectively, by the secretary of the state banking board, and said banking corporations shall thereupon set apart, keep and maintain in their said banks the amount thus levied against them, and the amounts thus levied, kept and maintained shall be and constitute what shall be designated as a depositors' guaranty fund, payable to the state banking board on demand for the uses and purposes hereinafter provided." By the amendment of 1911 two provisos were added to this section. The first has no bearing on the present controversy. The second is as follows: "Provided, further, that no bank which has complied in full with all of the provisions of this act 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." By this amendment it is made clear that the legislature intended the provisions of the banking act requiring a depositors' guaranty fund should operate as a substitute for the approved security required by the depository act, where the deposit is public funds.

It is contended, however, that the amendment is inoperative and void; that the purpose of the legislature in passing it is defeated for the following reasons: First, a proviso is not an available method for making such an amendment; second, the amendment is not within the scope of the enacting clause of the banking act or the amendatory act, and is therefore void; third, the amendment is not germane to section 46, to which it is appended; fourth, the banking act, as amended, is obnoxious to section 11, art. III of the constitution, because it amends or repeals the depository act by implication.

Considering the first of the foregoing contentions, it may be said that where a law is plain and unambiguous, whether expressed in general or limited terms, it will be presumed that the legislature intended to mean what...