53 Kan. 499 | Kan. | 1894
The opinion of the court was delivered by
The firm of Hood & Kincaids engaged in the general banking business, at Pleasanton, in 1883, and continued in that business without state regulation until September, 1891, when, in pursuance of the banking law of 1891, the firm transmitted to the bank commissioner the verified statement and report required by that act. The commissioner, finding that the bank had complied with the provisions of law, issued a certificate to Hood & Kincaids, authorizing them to do a banking business at Pleasanton, and they continued to transact business finder the supervision of the commissioner until July, 1893, when the bank commissioner, upon examination, found the bank to be insolvent. He at once took possession of the property, assets and books of the bank, and on July 19 the attorney general began an action in the district court, and secured the appointment of O. E. Morse as receiver. The firm of Hood & Kincaids appeared, and admitted the insolvency as alleged, and consented to the appointment. Soon after the appointment of the receiver, a number of the creditors of the firm of Hood & Kincaids caused attachments to be levied upon the property in the hands of the receiver. Motions to discharge the attachments were made by the receiver, and the attaching creditors also filed motions asking that the order appointing the receiver be set aside, the receiver discharged, and the property in his hands turned over to the sheriff, to be held by him under the attachments. The motions to discharge the
“ It will probably not be disputed that everyone has a right to pursue in a lawful manner any lawful calling which he may select. The state can neither compel him to pursue any particular calling, nor prohibit him from engaging in any lawful business, provided he does so in a lawful manner. It is equally recognized as beyond dispute, that the state, in the exercise of its police power, is, as a general proposition, authorized to subject all occupations to a reasonable regulation, wherever regulation is required for the protection of public interests or for the public welfare.”
“The business of banking, by reason of its very intimate relations to the fiscal affairs of the people and the revenues of the state, is and has ever been considered a proper subject of control, and strictly within the domain of the internal police power of every state. As a matter of fact, we have been unable to find an authority — and we have searched diligently — which has ever questioned the right of the legislature, in the exercise of police power, to regulate, restrain and govern the business of banking.” See, also, People v. Insurance Co., 15 Johns. 358; The People v. Barton, 6 Cow. 290; Curtis v. Leavitt, 15 N. Y. 9; The State v. Williams, 8 Tex. 255; Nance v. Hemphill, 1 Ala. 551; The People v. Brewster, 4 Wend. 498.
The authority principally relied upon by counsel for the plaintiffs in error is The State v. Scougal, 51 N. W. Rep. 858, found also in 15 L. R. A. 477. The latter case is in conflict with The State v. Woodmanse, supra, in holding that the legislature may prohibit private banking, and may inaugurate a system for the state in which the business is made an exclusively corporate franchise, to be carried on only by those who become incorporated, and are willing to subject their business to the restraints and safeguards deemed to be necessary. In The State v. Scougal, supra, it was decided that the business of banking was not a franchise at common law, and was not made such by the constitution, and, further, that it belonged to the citizens of the country generally by common right, and the legislature could not, under the police power of the state, prohibit an individual from engaging in the business, nor confer the privilege exclusively upon corporations. As no exclusive franchise has been conferred, and no discrimination made against individuals or private banks in our statutes, we are not required to determine which of the conflicting theories should prevail. Even in the Seougal case, which holds strictly against any discrimination in favor of corporate banks, it is held that, where the law applies to individuals
“But, assuming that the business of banking we are now considering is clothed with such a public use that it may be controlled by the state — and' we think it is so affected with a public interest — still it does not follow that the citizen may be deprived of the right to carry on the business. This, like any other business, may be subjected to reasonable regulations which shall alike apply to ail citizens and corporations.”
We readily conclude that the regulation of the banking business is clearly within the legislative power, and that the act passed cannot be regarded as an unconstitutional interference with individual rights.
Having determined that the act is valid, it follows that the rulings of the court sustaining the motions to discharge the attachmints and overruling the motions to discharge the re-ceivin' will be affirmed.