State ex rel. Taylor v. Cockrell

• Decision Date: 29 November 1910
• Docket Number: Case Number: 1600
• Parties: STATE ex rel. TAYLOR v. COCKRELL.
• Court: Oklahoma Supreme Court

1910 OK 374

112 P. 1000

27 Okla. 630

STATE ex rel.TAYLOR v. COCKRELL.

Case Number: 1600

Supreme Court of Oklahoma

Decided: November 29, 1910

Syllabus

¶0 OFFICERS--State Examiner and Inspector-- Right to Examine Records of Bank Commissioner. The State Examiner and Inspector is authorized by Act of April 9, 1908 (Session Laws 1907-8, ch. 79, art. 1, pp. 701-705), as amended by Act of March 12, 1909 (Session Laws 1909, ch. 37, art. 3, pp. 567-569; Comp. Laws 1903, ch. 108, art. 6, secs. 8674- 8680, pp. 1741-1743), to examine the office and records of the Bank Commissioner, including the records, books, papers, etc., of a failed or insolvent bank in his custody or control as such officer in winding up and administering the affairs of such bank, under the powers conferred upon him by said acts.

Original Action for Writ of Mandamus.

Action by the State, upon the relation of Charles A. Taylor, State Examiner and Inspector, against E. B. Cockrell, State Bank Commissioner. Writ awarded.

Charles West, Attorney General, and Charles L. Moore, Assistant Attorney General, for plaintiff.

Ledbetter, Stuart & Bell, for defendant.

WILLIAMS, J.

¶1 This is an original action for a writ of mandamus, instituted by the state of Oklahoma upon the relation of Charles A. Taylor, State Examiner and Inspector, against A. M. Young, Bank Commissioner of the state of Oklahoma. After the petition was filed Mr. Young resigned as Bank Commissioner and Mr. Cockrell, who was appointed to fill his place, appeared and prayed that he might be substituted as party defendant in place of said A. M. Young, and, upon being made a party, he adopted the answer filed by Mr. Young and made the same his answer.

¶2 The office of State Examiner and Inspector exists in no other state of this Union by constitutional provision. Section 1 of art. 6 of the Constitution of this state provides:

"The executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner and Inspector, Chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law."

¶3 In State of Oklahoma ex rel. Attorney General v. A. H. Huston, District Judge, et al. (ante), recently decided by this court, it was said:

"Under the Constitution of Oklahoma, which provides for the election of state, county and township executive officers alike by the people, the state executive officers below the Governor, with a few exceptions, are as independent of his control in the performance of their duties as are the officers of the counties or of the townships.

"Obviously, the duties of the State Examiner and Inspector, as prescribed by the Constitution, are to be discharged by him independent of the Chief Executive of this state. It is not within the power of the Chief Executive to prevent the State Examiner and Inspector from discharging any duty imposed upon him by virtue of the Constitution or the statutory law as in force in this state. The duty of the Chief Executive arises when the State Examiner and Inspector fails to discharge his duty, it then being the duty of the Chief Executive to see that the laws are faithfully executed and that all executive officers discharge the duties imposed upon them by law. However, under the clause providing that other duties and powers may be added by law, it is within the power of the Legislature to prescribe certain duties to be performed by the State Examiner and Inspector when directed by the Governor. (State ex rel. Haskell, Governor, v. Huston et al., 21 Okla. 782, 97 P. 982. But where a duty is imposed, not conditioned upon the direction of the Governor, but left to the discretion of the State Examiner and Inspector, it is not within the power of the Chief Executive to prevent the performance of such duty by him. The sole question involved in this case is as to whether the State Examiner and Inspector is authorized under the law to examine the records of the Bank Commissioner or banking department as to the collection and disbursement of the depositors' guaranty fund and the funds or assets of failed or insolvent banks received and disbursed by the Bank Commissioner or Banking Department in winding up the affairs of such bank, and if so, has such officer the authority, in order to verify the records of the receipts, collection and disbursement of such funds, to examine the record, books and papers of such bank while in the custody of the Banking Department? It is not contended on the part of the relator that the State Examiner and Inspector has any authority to inspect or examine any bank that is a going concern. As to the bank in question, the Columbia Bank and Trust Company, it seems that the Bank Commissioner, after due examination of its affairs, having become satisfied of its insolvency, took possession of its assets and proceeded to wind up the same. As to the funds and assets of said bank, are they under the management of the state, and within the scope of section 1, art. 3, ch. 37, pp. 567-569, Sess. Laws 1909 (sec. 1, art. 1, ch. 79, p. 701, Sess. Laws 1907-8), wherein it is provided: "The Examiner and Inspector shall examine the books and accounts of state officers whose duties it is to collect or disburse funds of the state, or (under) its management at least once each year"? That the Bank Commissioner is a state officer has not been and cannot be questioned. That the depositors' guaranty fund, and the funds of a failed bank in the hands of a Bank Commissioner for the purpose of reimbursing the depositors' guaranty fund, is as much a fund of the state as the common school fund is also true. The depositors' guaranty fund act was sustained by this court on the theory of the reserved power of the state to alter and amend charters of state banking corporations for the public welfare. See Noble State Bank v. Haskell et al., 22 Okla. 48, 97 P. 590, which is in harmony with Ozan Lumber Co. v. Biddie, 87 Ark. 587, 113 S.W. 796; New York Central & H. R. R. Co. v. Williams, 92 N.E. 404; and Hammond Packing Co. v. Ark., 212 U.S. 322, 53 L. Ed. 530, 29 S. Ct. 370. This power exercised for the public welfare by the legislative act which causes to be levied the assessment "against the capital stock of each and every bank or trust company organized or existing under the laws of this state * * * equal to five per centum of its average daily deposits during its continuance in business as a banking corporation," for the purpose of protecting the depositors of such banks (sec. 3, art. 2, ch. 5, pp. 121-123, Sess. Laws 1909), is the same as that which levies, or causes to be levied, as tax upon the people and property within the state for the maintenance and support of the common schools and educational institutions. The title of such depositors' guaranty fund vests in the state just as much so as the common school lands, or the proceeds of the sale of the same, and the taxes levied and collected for the maintenance and support of said schools, all of which are held in trust by the state for a specific purpose. Even if it were not a state fund, it would at least be a fund under the management of the state. In that event the Bank Commissioner, being a state officer (sec. 1, art. 14, Const.) and a part of the executive department, would be brought within the terms of the act that imposes upon the State Examiner and Inspector the duty to examine the books and accounts of all state officers whose duties it is to collect and disburse funds under the management of the state. The qualifications of the State Examiner and Inspector are that he is to be an expert accountant with three years' experience. He is also to be elected by the people in their sovereign capacity. By section 60 of art. 5 of the Constitution it was made mandatory upon the Legislature to "provide by law for the establishment and maintenance of an efficient system of checks and balances between the officers of the executive department, and all commissioners and superintendents, and boards of control of state institutions, and all other officers entrusted with the collection. receipt, custody or disbursement of the revenue or moneys of the state whatsoever." The title of the act passed by the first Legislature under this mandate is as follows: "An Act relating to the office of State Examiner and Inspector, in compliance with section 152 of the Constitution of the State of Oklahoma, providing for a State Examiner and Inspector; and article 5, section 133, entitled, 'A system of checks and balances between officials'; defining duties and powers of State Examiner and Inspector; providing for appointment of an assistant, deputies and other employees, fixing salaries, providing for penalties, repealing all conflicting acts, and declaring an emergency." (Sess. Laws 1907-8, p. 701). The supplemental amendatory act passed by the Legislature of 1909, pursuant to the same mandate, is styled as follows: "An Act amending an act entitled, 'An Act relating to the office of State Examiner and Suspector (Inspector), in compliance with section 152 of the Constitution of the state of Oklahoma, providing for a State

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