131 Neb. 692 | Neb. | 1936
The Farmers State Bank of Clarks brought this suit against the banking department of the state to enjoin it from taking charge of the bank and liquidating it. The trial court issued the injunction.
This bank was closed under the moratorium of March, 1933, reopened thereafter on March 15, 1933, under the provisions of chapter 16, Laws 1933 (H. R. 167), with a contract with its depositors and with the department. This suit was filed on September 27, 1934. The trial was on December 10, 1934, after which the cause was taken under ad
A substantial part of the decree,of the trial-court entered May 17, 1935, is set out for.the reason, that it.contains the finding of facts as. well as the conclusion of the trial judge: “The court specially finds that on. March • 18, 1933, the plaintiff entered into a written contract with its depositors under House Roll 167, 1933 Session Laws of the state of Nebraska, which was approved by the secretary of the department of trade and commerce of the state of Nebraska, a copy of which is attached to. plaintiff’s amended petition; that thereafter the plaintiff was permitted to reopen and do a limited banking business; that it .has strictly complied with all the provisions of said contract; that all deposits made since the date of said contract are.held in trust for the depositors, and in no way jeopardized; that the depositors’ committee and .163 depositors out of a total of 203 depositors have intervened herein, and joined in the prayer of plaintiff’s petition; that no depositors have petitioned or expressed dissatisfaction with the conduct of the plaintiff bank; that due to the severe heat a,nd drought of the past summer, .crops were a total failure in the vicinity of Clarks; that notwithstanding,said condition, the plaintiff bank and its depositors'are willing and ready to carry on with a view of restoring the plaintiff bank to solvency; that the situation is not hop.eless;. that the defendants attempted to take possession of the plaintiff bank at the time this action .was commenced, with a view of winding up its affairs through receivership ; that it is f.or the best interest of all parties concerned to permit the plaintiff bank to continue to .operate under said contract with its depositors as prayed for; that the restraining order issued at the commencement of the trial, and-continued to date, should be made permanent; that the defendants, upon sufficient showing, may have such restraining order modified or dissolved.”
The evidence supports every finding of fact of the trial judge. The plaintiff bank has not only complied strictly with the law but with its agreement with the banking de
However, chapter 16, Laws 1933, under which the bank was operating upon a limited basis had for its purpose the restoration of solvency of the bank and not the liquidation of the bank. For such operation the department may approve a contract between the unsecured depositors and unsecured creditors and the board of directors of the bank. Such a contract was approved in this case. The contract contained this provision: “It is specially agreed and understood by the contracting parties that the operation of the bank under this contract shall continue at the discretion of the secretary of the department of trade and commerce.”
Even if this condition were not in the contract, the statute itself provides: “The approval of said contract by the secretary shall release him from the duty to report the facts to the attorney general, but this act shall not restrict the right of the secretary to request the. attorney general to apply for the appointment of a receiver, when in his opinion it is for the- best interests of the contracting parties.” Laws 1933, ch. 16, sec. 1.
The plaintiff contends that the secretary of the department must exercise his discretion in a reasonable manner and is subject to judicial review. This argument is untenable.
The legislature intended to provide for an administrative receivership of banks independent of judicial control. Section 8-190, Comp. St. 1929, as amended by section 53, ch.
The amendment made it manifest that the legislative intention was to establish an administrative receivership of banks, and that the only question for the court to determine was the insolvency of the bank and failure to restore to
The decree was signed May 17, 1935, and the Amendment went into effect August 26, 1935. The amendment was merely a clarification of the section and not in diametrical conflict with the previous provisions. In City of Beatrice v. Gage County, 130 Neb. 850, 266 N. W. 777, the following quotation from Cooley, Constitutional Limitations (6th ed,) 469, appears: “If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the' case under the law in force- when its decision is rendered.” The suit should have been dismissed.
Reversed and dismissed.