166 A. 765 | Pa. | 1933
Argued March 21, 1933. Alleging loss by a tax collector's default, suit, to the use of the county, was brought on the bond given by defendant, Irwin Savings and Trust Company, for faithful performance by the collector. In its affidavit of defense under section 20 of the Practice Act, defendant set up that the bond was null and void, being prohibited by statute. Judgment was entered for defendant and this appeal followed.
Defendant was incorporated in 1922 under the General Corporation Act of 1874, P. L. 73, particularly section 29 as supplemented from time to time. The scope of that section, originally authorizing incorporation for the purpose of insuring titles to real estate, was much enlarged by an Act of May 9, 1889, P. L. 159, enabling such corporations, inter alia, "To become sole security for the faithful performance of the duties of any national, state, county or municipal officer, and to execute such bonds or recognizances as may be required by law in such cases."
Defendant relies on the Act of May 16, 1923, P. L. 248, entitled "An act limiting the power of state banks, banking companies, trust companies, saving banks, and unincorporated banks, to become surety on bonds." Section 1 provides, "That the word 'Bank,' as used in this act, means any state bank, incorporated banking company, trust company, savings bank, or unincorporated bank, heretofore or hereafter organized." Section 2 provides that no bank, so defined, and therefore no trust company, "shall become surety on any bonds, except that any bank, which has qualified itself under the laws of this Commonwealth to engage in a fiduciary business, may become sole surety in any case where, by law, one or more sureties are or may be required for the faithful performance of the duties of any assignee, receiver, guardian, committee, executor, administrator, trustee, or other fiduciary, and may also become sole surety on any writ of error or appeal, or in any proceeding instituted *246 in any court of this Commonwealth in which security is or may be required": Section 3 provides that "Any bonds executed and delivered in violation of the provisions of this act shall be null and void." Section 4 repeals all acts or parts of acts inconsistent with it. The bond in suit was executed March 31, 1927.
Is Irwin Savings Trust Company a trust company in the sense in which the word was used by the legislature? If it is, plaintiff cannot recover. In support of the contention that defendant is not a trust company, appellant refers to cases (among them, DeHaven v. Pratt,
On the other hand, defendant contends that, entirely apart from banking companies organized pursuant to the General Banking Act of 1876, corporations, under section 29 of the General Corporation Act, and supplements, became trust companies and were uniformly so designated by the legislature as to leave no doubt that they were included in the words "trust company," in the Act of 1923, supra. In DeHaven v. Pratt, supra, decided in 1909, in considering the "trust company," as the term was used in the early Act of May 11, 1874, P. L. 135 (repealed by the General Banking Act of 1876, supra, Gordon v. Winneberger,
Appellant also makes the following contention: "The act and its amendments under which defendant was incorporated, granted particular and specific powers to the defendant, and these particular and specific grants *248 are not repealed by a general act, such as that of May 16, 1923, P. L. 248, designed to apply to cases generally. A Title Insurance Company under the Act of 1874, even though called a trust company or a bank, must be regarded as excepted from the operation of this Act of May 16, 1923, P. L. 248."
We cannot accept the contention, which would nullify the act by leaving no corporation to which it could apply. The sweeping provision of the Act of 1923 is that "No bank [as defined] shall become surety on any bonds. . . . . ." like that in suit. The statute is neither more general nor less particular and specific than was the grant of power to become surety on such bonds in effect when defendant received letters patent. The obvious intention was to regulate banking by prohibiting such companies from thereafter becoming surety for the faithful performance of the duties of any municipal officer; this, the legislature was competent to do: Noble State Bank v. Haskell,
Appellant also suggests that it is unjust to permit defendant to plead that the contract is ultra vires; but the legislature has expressly prohibited the transaction and has provided that such bond shall be null and void. See Swing v. Munson,
Judgment affirmed.
