"This
was an action commenced by the plaintiff (appellant) against
the defendants to recover the loss on a deposit made by her
in the Farmers Bank of Durham, Durham, Missouri, the
respondents being the directors of said bank. The petition
alleged that at all times during the years 1921 and 1922, and
for a long time prior thereto, said bank was wholly
insolvent, that each of the defendants was well aware of the
insolvent condition of said bank during all the time of its
insolvency and that each of the defendants well knew during
all of the years of 1921 and 1922, and for a long time prior
thereto, that the said bank was wholly insolvent and unable
to pay its legal obligations. The petition further alleges
that on April 25, 1922, she deposited in said bank the sum of
$ 200 and received from the bank its certificate of deposit
therefor, which certificate recited that said sum was payable
to the order of plaintiff in current funds three-twelve
months after date with interest at the rate of five per cent
per annum; that on or about August 31, 1922, the doors of
said bank were closed because of insolvency and that the
affairs of the bank were taken over by the Finance Department
of the State of Missouri for the purpose of liquidation; that
plaintiff made due demand for her money; that she has
received various sums at intervals, aggregating $ 80.20, the
last payment being as of date December 27, 1927, upon which
said last date the last distribution dividend was made and
paid and final liquidation of said bank was effected by the
Finance Commissioner of the State of Missouri and that there
is now due her the sum of $ 119.80 with interest on the
entire amount deposited, as aforesaid, from April 15, 1922
to the time of the closing of said bank. Plaintiff further
states that the amount plaintiff is entitled to recover
hereunder is and was and first became capable of
ascertainment on December 27, 1927, and she prayed for the
recovery of $ 119.80, the balance due on the certificate of
deposit with five per cent interest on the entire amount of $
200 from April 15, 1922, until the closing of the bank, and
for six per cent interest from the date of the closing of the
bank.
"The
defendants filed an amended special demurrer setting up (1)
that the cause of action accrued more than five years before
the filing of the petition and was, therefore, barred by the
five-year Statute of Limitations (Sec. 1317, R. S.
1919), and (2) that the cause of action accrued more than
three years before the filing of the petition
and that it is barred by the three-year Statute of
Limitations (Sec. 1318, R. S. 1919).
"The
demurrer was sustained and, the plaintiff declining to amend
her petition or plead further, judgment was entered in favor
of the defendants.
"Plaintiff
here contends that the petition shows on its face that it is
not barred by the limitations of either Section 1317 or
Section 1318, Revised Statutes 1919; that the liability
created by the provision of Section 27, Article 12, of the
Constitution, and Sections 11763 and 11764, Revised Statutes
1919, is a contractual one, and, therefore, the applicable
limitation is that fixed by Section 1315, Revised Statutes
1919.
"Is
the liability created as aforesaid a penal or contractual
one?
"In
the case of Eads v. Orcutt, 79 Mo.App. 511, 519, 520
(decided in 1899), the court said:
"'But
when the statute imposes a liability on the corporation
officer which was not his, as a consequence of his doing a
forbidden act, it is a penalty (in a local sense),
notwithstanding it may afford a remedy to the party
complaining. It would be so held by the Supreme Court.
[Guerney v. Moore, 131 Mo. 672; Kritzer v.
Woodson, 19 Mo. 327; Cable v. McCune, 26 Mo.
371.] . . . Our statute prohibits receiving deposits, or
contracting debts, when the bank is "insolvent or in
failing circumstances" and provides that any officer
"violating the provisions of this section shall be
individually responsible for such deposits so received and
all such debts so contracted." This clearly, though
providing a remedy for the creditor and in that respect
remedial, inflicts a punishment on the officer for his
transgression by making him pay the debt of the corporation,
which he did not owe. It will be observed that the statute is
but a legislative compliance with the Constitution of the
State, and that the language of each is in the imperative,
commanding what shall not be done and prescribing onerous
consequences. We are satisfied that the civil liability thus
put upon the officers is a penalty.' [White v. Poole, 220
Mo.App. l. c. 988, 272 S.W. 1028.]
"In
the case of Ivie v. Bailey (Mo.), 5 S.W.2d l. c. 53,
the court has this to say with reference to the above
constitutional provision: 'The latter portion of the
section in considering its nature and the purpose of its
adoption should be construed as creating a civil
liability.'
"We
think there can be no question of the soundness of the
conclusion reached in the above cases. Under the
constitutional provision and statutes involved here the
liability is not directed against all stockholders alike, but
is directed against certain persons, some of whom may not be
stockholders, so that, in the singling out of the persons
named in those provisions, it seems clear that the statute is a penal one, enforceable as a civil action.
The usual statutory provisions fixing double liability upon
stockholders (as in the cases relied upon by the appellant)
apply to all stockholders and could not and do not apply to
non-stockholders.
"The
appellant argues, however, that the use of the word
'debts' in our constitutional provision and statutes
shows an intention to create an obligation contractual in
character. A reading of the constitutional provision and the
sections of the statute discloses, however, that there are
two subjects treated of; in the constitutional provision it
is stated that if the persons named shall 'assent to the
reception of deposits, or creation of debts,' and
subsequently provides that the persons named 'shall be
individually responsible for such deposits so received and
all such debts so created with his assent.' These same
provisions, in substantially the same words, appear in the
two sections of the statutes referred to. The word
'debt' is not used to describe deposits, but an
obligation of the bank other than a deposit. Nor does it
refer to such obligation as one owing by the director, or
other officer, but is descriptive of the obligation assumed
by the bank with the assent of the director or other officer.
In no wise can they be said to indicate an intention to
declare the punishment prescribed as being in any wise a
contractual obligation so far as the offenders are concerned.
"In
the case of Diversey v. Smith, 103 Ill. 378, 394,
395, in which the question arose as to whether the statute
there in question created a liability that was penal in its
nature or that was contractual in character, the court, after
referring to a number of cases involving statutes upon the
liability of stockholders of corporations, says:
"'In
short, there the debts for which the stockholders were held
liable were contracted pursuant to law, while here those for
which they are sought to be held liable were contracted in
violation of law. . . . Here, the statute in effect says the
thing shall not be done, and if it is done, the trustees and
corporators shall be liable, etc. In all the cases referred
to the statute says the thing may be done, and the
stockholders, etc., shall be liable, either absolutely or
until some subsequent thing shall be done. In the one case
the liability is in consequence of violating the law, or
suffering it to be violated; in the other the liability is
incurred in strict compliance with the law -- in short, in
one case the liability is for a wrong done -- a tort; in the
other it is upon contract.'
"The
appellant next...
