9 Ga. 253 | Ga. | 1851
By the Court.
delivering the opinion.
The Bank of Columbus, by Edward Carey, the assignee, instituted suit in Twiggs County against Hartwell H. Tarver and others, to collect certain notes transferred to the Columbus Bank by the Bank of Macon, a short time before its failure. One Rice, as the receiver of the Bank of Macon, appointed by the Governor, under the authority of the Legislature, pending said suits, filed his bill alleging said transfer to have been fraudulent, and claimed said notes as a portion of the assets of the Bank of Macon. In November, 1849, Rice died, and in April, 1850, John M. Giles was appointed by the Governor in his place. Mr. Giles prayed to be made a party complainant to the proceeding in Chancery, as successor of Rice, which application was resisted on the part of Edward Carey, as assignee of the Columbus Bank. It was agreed, however, that it might be done on motion, provided it could be done in any other way. Judge Hansell de
[I.] The question in this case is narrowed down to an isolated point, namely: the constitutionality of the Acts of the General Assembly of 1832 and 1833. By the former, the the Governor was authorized to appoint some fit and proper person to act as receiver. See Pamphlet Acts of 1832, p. 28. But doubts having arisen as to the power of the receiver to sue in his own name, the ensuing Legislature clothed him with power and authority to bring any action or suit at Law or in Equity in his own name which he might deem necessary for the collection of all debts due and owing to the bank, See. See Pamphlet Acts of 1833, p. 39. By the 13th section of the charter of the Bank of Macon, it is declared, that “ if the bank shall at any time fail or refuse to redeem their notes in specie, and the same shall be protested before a Notary Public to the amount of ‡25,000, or if the notes or bills issued by said bank should depreciate and not pass currently without a discount on the same of ten per -cent, or upwards, the Legislature, upon either of these facts being satisfactorily established or made known to them (without resorting to the Courts of Justice,) may pronounce the charter forfeited, and suspend all further operations of said bank; Provided, that nothing therein contained shall prevent said corporation, in case of forfeiture, from suing and collecting, in their corporate capacity, all debts previously due them, and of being sued and compelled to pay all debts due by said corporation.” Dawson’s Compilation, p. 74.
A committee was appointed in 1832 to investigate the condition of the Bank of Macon, who concluded their report by recommending a repeal of the Act incorporating said bank, both on account of its having failed to redeem its notes in specie, in terms of its charter, and because its bills were at that time at a discount of at least seventy-five per cent. From the report of the committee, it appeared that all or nearly all of the stock of the company had accumulated in the hands of one individual, and that he was dead and insolvent. From which facts, the conclusion is irresistible, that the corporation as such could never be
Accordingly, the Legislature at the same session, by virtue of the right reserved to itself in the charter, and without waiting to have the delinquency of the bank judicially ascertained, after reciting in the preamble that the bank had failed and refused to redeem its notes in specie, and that the same had ceased to pass currently., and were then at a great depreciation, passed an Act declaring the charter.to be null and void, and that the rights, privileges and immunities which had been granted should thenceforth cease, determine and be of no effect. They then proceed and annex the same proviso that is contained in the charter, as already quoted, namely: that nothing contained in this repealing Act shall prevent said corporation from suing and collecting, in their corporate capacity, all debts previously due them, and being sued and compelled to pay all debts due by said corporation, and, in the following section, authority is given to the Governor to appoint a receiver as already noticed.
No question is raised as to the right of the Legislature to repeal the charter. It is contended, however—
1st That the appointment of a receiver is a judicial act; and
2d. That it impairs the obligation of contract, by taking from the bank the right secured to it by its charter of suing and being sued in its corporate capacity.
2d. Even admitting that the defunct corporation could be re
But McLaren vs. Pennington et al. (1 Paige’s Rep. 102,) is a case directly in point. While all the conservative doctrines in the Bank of Columbia vs. Oakley, (4 Wheaton, 236, 245,) Young vs. The Bank of Alexandria, (4 Cranch, 395,) and Dartmouth College vs. Woodward, (4 Wheaton, 518,) were re-affirmed by the learned Chancellor, yet he maintained, that notwithstanding there was no provision for the appointment of trustees by the Legislature, in the event of the dissolution of the charter, but, on the contrary, there was an express grant and stipulation that, in case of forfeiture, the officers of the bank should be the trustees to settle its affairs, still the Act of the Legislature, appointing other trustees and giving them control over all the property of the bank, was valid.
But we are averse to setting aside these Statutes, authorizing tiie appointment of a receiver, for another reason. Coeval with their passage, their constitutionality was sustained by the convention of Judges at Milledgeville ;¡ and I may say of this Bench, without transgressing the bounds of truth, that our judicial hemisphere was illuminated at this epoch by a constellation of bright stars, whose effulgence has never been eclipsed at any period of our history.
The question came up in this form: G. B. Hargrove having been appointed receiver of the assets of the Bank of Macon, moved a rule nisi against Carlton B. Cole, Esq. in Bibb Superior Court, calling upon him to show cause why a rule absolute should not pass against him, to compel him to deliver over to the said receiver the assets of said bank, held in his hands as attorney at law. The rule absolute was resisted, on the grounds that the
Upon the whole, we see no error in the record,, and consequently affirm the judgment, of the Circuit Court..