154 Ga. 885 | Ga. | 1923
The superintendent of banks made an assessment under the State banking act of 1919, against the stockholders of the American Bank & Trust Company, of 100 per cent, of the face value of their stock. Notice was given, that, if this assessment was not paid -within thirty days, executions would be issued against the several stockholders for the amount of their respective assessments. ' The stockholders of the bank filed a petition to enjoin the superintendent of banks from issuing such executions, alleging that article 7 of section 20 of the act approved August 16, 1919, which purports to authorize the superintendent of banks to make a final assessment and to issue executions against bank stock
The provision of the act under which the superintendent of banks was proceeding, is as follows: “Within ninety (90) days after the superintendent of banks has taken possession of the assets and business.of any bank, as in this act authorized, he shall make a careful estimate of the value of the cash assets of said bank which can probably be converted into cash within one year after so taking possession of the assets and business of said bank, and of the amount of such cash assets which will be available to pay depositors ; and he shall" immediately thereupon make an assessment upon the stockholders of said bank, sufficient, when added to the cash assets so available for depositors, to pay the said depositors in full; provided that such assessment shall not exceed the liability of stockholders upon their said stock. Notice of such assessment shall be given by mail to each of the stockholders of said bank; and if any stockholder so notified shall refuse or neglect to pay any such assessment within thirty (30) days after the levy of such assessment and notice thereof, the superintendent of banks shall issue an execution against such stockholder for the amount of such assessment, which shall be enforced in like manner as executions issued by the superior courts of this State upon judgments regularly rendered by said courts; provided, however, that any stockholder shall have the right by affidavit of illegality, as in cases of affidavits of illegality to other executions, to contest his liability for such assessment, but not the correctness of the estimate made by such superintendent or the amount of such assessment,-which estimate and the amount of such assessment shall be final and conclusive upon the stockholders.”
It will be observed that this statute makes no provision whatever for a notice prior to the estimate or assessment or hearing by the stockholder of the bank 'before the assessment is made against him; although when made it is final and conclusive upon such stockholder. It will be further noted that unless the assessment made is paid within thirty (30) days after notice, the superintendent of banks is authorized to issue an execution against the stockholder for the amount of the assessment, “ which shall be enforced in like manner as executions issued by the superior courts of this State
The issue presented in this case is practically identical with that presented to this court in Bennett v. Wheatley, 154 Ga. 591 (115 S. E. 83), in which the judgment of the lower court in granting an injunction restraining the banking commissioner from proceeding under the provisions of'section 20 of article 7 of the act of 1919 was reversed. In that case Mr. Justice Hines presented the views of the majority of the court, and Mr. Justice Hill filed a dissenting opinion in which Mr. Justice Gilbert concurred- I have carefully read and considered the opinions of both the majority and minority, but am unable to alter my convictions that the provision of section 20 of article 7 of the act of 1919, in relation to the collection of assessments from stockholders is effectively a denial of due process of law to stockholders against whom executions may be issued by the commissioner of banks. I agree with the reasoning in the dissenting opinion of Mr. Justice Hill in the Wheatley case; and there is no question that his view of the ease is amply supported by the authorities therein cited. I regret if the result of my non-adherence to the views of the majority in the Wheatley case should result in rendering less speedy the liquidation of insolvent banks, or should impose delay in winding up their affairs.
However, no matter what the result, it is in my opinion of prime importance that old, fundamental, essential personal rights be preserved; and among the most ancient rights possessed by English-speaking people is that of due process of law. To deprive any citizen of any right, however. insignificant, without a hearing, or an opportunity to be fairly heard, is obnoxious to every principle of jurisprudence as well as to every innate sentiment of common justice. For my part, therefore, I am content to rest my decision upon the proposition that the provision in section 20 of article 7 of the act of 1919, with reference to contesting the execution issued by the bank commissioner by affidavit of illegality, totally fails to provide any such remedy to the stock