177 Ga. 334 | Ga. | 1933
These two cases both arose out of a single case wherein the Better Business Division of the Atlanta Chamber of Commerce applied to the superior court for a writ of mandamus against the State superintendent of banks, to compel him to take under his jurisdiction and supervision Bankers Savings & Loan Company. Bankers Savings & Loan Company was joined as a party defendant in the lower court, because it was directly and vitally interested in the outcome of the litigation. Both defendants filed general demurrers, upon the overruling of which they filed separate bills of exceptions. The application for mandamus set out that the Bankers Savings & Loan Company was chartered by the superior court and was operating in Atlanta a business which should properly come under the jurisdiction and supervision of the State banking superintendent. The activities of the Bankers Savings & Loan Company were carried on in quarters arranged exactly like a bank, with cashier’s windows, counters, and checks supplied by the defendant to its customers and found lying about on its counters, exactly like ordinary checks of any bank, with the usual blank spaces to be filled in, and with the name “Bankers Savings & Loan Company” inserted in the place where the name of a bank is usually found. Bankers Savings & Loan Company had in large signs on its windows the words “Industrial Banking,” “Loans,” “Savings,” “Savings Certificates,” and maintained several signs in which the Bankers Savings & Loan Company was referred to as a bank. The allegations of the petition describe in considerable detail these signs. In one of the signs Bankers Savings & Loan Company referred to itself as “this bank.” In another it advertised that “a bank account here” will help to pave the way to success. It advertised that 5% and 6% was paid on savings, with 100% safety for money and “withdrawal on demand.” Bankers Savings & Loan Company
The violations by Bankers Savings & Loan Company of the banking act are set forth in detail in the petition for mandamus. ' In brief, violations are alleged to be that the defendant is maintaining a sign having thereon a name importing that it is a bank; that it uses in its signs, names, and advertisements the words “bankers,” “banking,” “industrial banking,” “savings,” “loans,” and “ deposits,” indicating that it is a regular chartered bank. It is alleged to be conducting a banking business without having secured the permission of the superintendent of banks. The violations of the law committed by Bankers Savings & Loan Company were brought to the attention of the superintendent of banks, and he was requested to perform his duty and compel a compliance by Bankers Savings & Loan Company with the law,- and he failed, after demand, to force this compliance by Bankers Savings & Loan Company. The alleged failures of the superintendent of banks to perform the duties imposed by the statute are set out in detail in the petition, wherein it is alleged, in brief, that the superintendent is required to list all banks in his annual report, but he has not listed the Bankers Savings & Loan Company; that he is required to make a summary of the condition of every bank and semi-annual investi-. gation of every bank subject to his supervision, but has failed to include a summary of the condition of Bankers Savings & Loan Company or to make the semi-annual investigation; and that he has not made any investigation of the Bankers Savings & Loan Company since it commenced business. The superintendent is alleged to be charged with the duty of taking over banks operating in violation of the banking laws; and he has failed to take possession- of Bankers Savings & Loan Company, although it has violated the law in the respects above stated. The defendants relied upon three propositions chiefly. The first was, that the petitioner for mandamus was not entitled to maintain the action; the second was that Bankers Savings & Loan Company was not engaged in any
We are of the opinion that the petitioner for mandamus was entitled to maintain the action. The question involved was one of public, and not mere private, interest. In Board of Commissioners v. Montgomery, 170 Ga. 361 (153 S. E. 34), it was said: “The principle that it is an essential requisite of an application for mandamus to enforce a right that it allege pecuniary loss to the plaintiff for which he can not be compensated in damages (Atlantic Ice & Coal Corp. v. Decatur, 154 Ga. 882, 115 S. E. 912), is applicable only to the enforcement of private rights.” In Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 (160 S. E. 620, 80 A. L. R. 735), a similar ruling was made/it being held: Where the question is one of public and not mere private right, and the object of mandamus is to enforce performance of a public duty, the relator need not show that he has any legal or special interest in the result; it being sufficient that he is interested in having the law executed and the duty enforced. Board of Commissioners of Manchester v. Montgomery, 170 Ga. 361 (2) (153 S. E. 34); Plainfield Consolidated School District v. Cook, 173 Ga. 447 (160 S. E. 617). In the instant case the several questions were as to public, and not mere private right, except the question relating to notations by the Atlanta Title and Trust Company on original instruments lodged with the clerk of the superior court for record, as alleged in paragraph 9 of the petition. That question related to a private right affecting only the owner of the paper lodged for record. The petition did not allege the making of a notation on a paper lodged by the petitioner with the clerk to be recorded.” Under the doctrine laid down in the cases referred to above, we are of the opinion that the petitioner in this case could maintain this action.
We are further of the opinion that the court did not err in overruling that part of the general demurrer which insists that the petition fails to set out or show that the Bankers Savings & Loan Company is conducting a banking business as defined by the laws of the State of Georgia, in such a manner as to subject the defendant to the supervision of the banking department of the State of Georgia by and through its superintendent of banks; and further that
In view of the facts, the defendant can not set up its illegal acts to remove itself without the supervision of the banking department and the superintendent of banks. It would be a strange omission in the general banking laws under consideration, if a corporation should be permitted to carry on a banking business in violation of law, and yet not fall within the control or supervision of the superintendent of banks, under the powers, wide and presumably complete, which are conferred upon that officer by the act regulating banks. If such a banking institution as Bankers Savings & Loan Company does not fall within the supervision of the superintendent of banks, what protection has the public against any corporation procuring a charter, when it proceeds to do a banking btisiness, invites the confidence of the public, secures large deposits, and in various ways holds itself out as a banking corporation? In the Code of 1910, § 5440, it is provided that “All official duties should be faithfully fulfilled; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights.” But it is contended by plaintiffs in error that if the section of the State banking act making the superintendent of banks subject to mandamus is compared with the Code section just quoted, it will be
Judgments affirmed.