Vale v. Messenger

• Decision Date: 27 June 1918
• Docket Number: 32393
• Citation: 168 N.W. 281,184 Iowa 553
• Parties: BRUCE R. VALE, Appellant, v. GEORGE H. MESSENGER, Superintendent of Banking, Appellee
• Court: Iowa Supreme Court

168 N.W. 281

184 Iowa 553

BRUCE R. VALE, Appellant, v. GEORGE H. MESSENGER, Superintendent of Banking, Appellee

No. 32393

Supreme Court of Iowa, Des Moines

June 27, 1918

REHEARING DENIED SEPTEMBER 30, 1918.

Appeal from Polk District Court.--GEORGE WILSON, Judge.

ON petition praying that defendant be restrained from issuing a certificate to the Bonaparte State Bank, authorizing it to commence business, and that on final hearing, he be required to ascertain whether the establishment of such an institution would be inimical to the interests of the public, a temporary injunction was issued, as prayed. On motion, the restraining order was dissolved. From this order, plaintiff appeals.

Affirmed.

Robert Sloan, H. B. Sloan, F. W. Sargent, and L. H. Salinger, for appellant.

H. M Havner, Attorney General, Walker & McBeth, and Stipp, Perry Bannister & Starzinger, for appellee.

LADD, J. PRESTON, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

The department of banking was created by Chapter 40 of the Acts of the Thirty-seventh General Assembly. The defendant is the superintendent of that department.

A. V. Blackford and others organized what is known as the Bonaparte State Bank, with 141 shareholders, in the manner prescribed by Section 1863 of the Code. The articles were recorded, and notice of incorporation given as therein directed. Its capital of $ 25,000 was paid up, together with a reserve fund of 10% thereof, of which fact the superintendent of banking was satisfied by a sworn statement of the officers of the bank and the deposit of the money with a depositary approved by him. Thereupon, he was about to issue a certificate, authorizing the corporation to commence business, when plaintiff demanded that the superintendent of banking make investigation, and ascertain whether the interests of the public would be served or impaired by the establishment of said bank in the incorporated town of Bonaparte, and offered to submit proof tending to show that, in the exercise of a sound discretion, the superintendent ought to deny the certificate. The superintendent declined to investigate, or to exercise any discretion in the matter, other than in determining whether the capital had been fully paid in; and so did on the ground that he was without authority to do so. Thereupon, this suit was begun in mandamus, to require him to make such investigation and determine whether any public interest would be jeopardized by opening the bank as is proposed.

The defendant was temporarily enjoined from issuing the certificate to commence business, pending hearing. On motion, the restraining order was dissolved, and this ruling is here for review.

The question presented is not whether the superintendent of banking should deny or issue the certificate, but whether the statutes of this state confer authority to inquire into the propriety of so doing, and whether he should so do, in the proper discharge of his duties. That Bonaparte is a place of about 600 inhabitants, and has two banks,--one a state bank, with a capital stock of $ 50,000, surplus and undivided profits $ 20,000, and deposits in the sum of $ 450,000, and the other a savings bank, with $ 15,000 capital stock, and about a like amount in deposits,--and other matters, are evidently pleaded to indicate that whether another bank there would be of any advantage to the public is an open question. If the superintendent has such power, it must be found in the statutes, or fairly be implied therefrom.

Prior to the enactment of Chapter 40 of the Acts of the Thirty-seventh General Assembly, banks and loan and trust companies incorporated under the laws of the state were under the supervision of the auditor of state. The banking department was created by that chapter, and to it were transferred all matters concerning such corporations, formerly dealt with by the auditor of state. The chief officer of the department is styled "superintendent of banking," and Section 2 of said chapter exacts that his selection shall be "solely with regard to his qualifications and fitness to discharge the duties of this position." His powers, aside from those incident to organization, are defined by Section 7 of the act, which may as well be set out:

"The superintendent of banking shall be the head of the banking department of Iowa and shall have general control, supervision and direction of all banks and trust companies incorporated under the laws of Iowa, and shall be charged with the execution of the laws of this state relating to banking; and all powers now vested in and all duties imposed upon the auditor of state relating in any way to banking matters, shall, from and after the taking effect of this act, be vested in and made incumbent upon the superintendent of banking herein provided for."

Section 8 requires that:

"All books, records, files, documents, reports and securities, and all papers of every kind and character relating to the business of banking and now enjoined and required by law to be delivered to or to be filed or be deposited with the auditor of state shall, from and after the taking effect of this act, be delivered to and filed or deposited with the said superintendent of banking."

Precisely the extent or limitation of the authority intended to be vested in the superintendent, by the clause giving him "general control, supervision and direction of all banks and trust companies incorporated under the laws of Iowa," need not now be determined. It is enough, for the purposes of this case, that he is "charged with the execution of the laws of this state relating to banking," and is vested with all powers and required to perform all the duties formerly exacted of the auditor of state. These will be found, specified with more or less exactness, in Chapters 10, 11, and 12 of Title IX of the Code, beginning at Section 1841, as subsequently amended; and these were not changed by the Acts of the Thirty-seventh General Assembly, unless this were effected by conferring on the superintendent general control of the banks and trust companies of the state.

Sections 1861 and 1862 of the Code relate to the incorporation of the word "state" in the name of the bank, and Section 1863, to what shall be contained in the articles of incorporation, how they shall be signed and acknowledged, the recording of the same in the office of the secretary of state, and the publication of notice of incorporation. The section following, Section 1864 of the Code Supplement, 1913, provides that:

"No state bank shall be organized under the provisions of this chapter with a less amount of paid up capital than fifty thousand dollars, except in cities or towns having a population not exceeding three thousand, where such association may be organized with a paid up capital of not less than twenty-five thousand dollars. But no such association shall have the right to commence business until its officers or its stockholders shall have furnished to the auditor of state a sworn statement of the paid up capital, and, when the auditor of state is satisfied as to that fact, he shall issue to such association a certificate authorizing it to commence business, and it shall cause said certificate to be published in some newspaper printed in the city or town where the association is located, once each week, for at least four weeks, or, if no newspaper is published in such city or town, then in a newspaper published nearest thereto in the county."

The meaning of the language of this statute seems manifest. After all exacted by the preceding sections has been accomplished, one very essential thing is lacking, and that is the capital with which to conduct the business proposed. Without this, it is merely an organization on paper. Before it may do business, a certificate so authorizing must be obtained. How? By furnishing the auditor (now the superintendent of banking) a sworn statement by its officers or stockholders that the capital is paid up. "When the auditor of state (superintendent of banking) is satisfied as to that fact," he shall issue the required certificate. Of what fact is he to be satisfied? Plainly enough, that the capital has been paid up.

The auditor is limited to this one inquiry, and by the specification that, when he "is satisfied as to that fact, he shall issue to the association a certificate," all other facts are, by implication, excluded. The maxim "Expressio unius est exclusio alterius" is applicable in such cases. City of Keokuk v. Scroggs, 39 Iowa 447; Slane v. McCarroll, 40 Iowa 61; McBride v. Des Moines City R. Co., 134 Iowa 398, 109 N.W. 618; Carter v. City Council of Council Bluffs, 180 Iowa 227, 163 N.W. 195.

The word "shall," appearing in statutes, is generally construed to be mandatory. Where no right or benefit depends on its imperative use,...