54 Ga. App. 843 | Ga. Ct. App. | 1936
Lead Opinion
The State of Georgia, for the use and benefit of Eva Horne, instituted suit against R. E. Gormley, superintendent of banks, and the United States Fidelity and Guaranty Company as surety on his official bond. The petition alleged: On October 13, 1931, the Bankers Savings and Loan Company was chartered by the superior court of Fulton County (this charter is attached to the petition as an exhibit). In October, 1931, the Bankers Savings and Loan Company opened its offices in Atlanta^ Georgia. It openly conducted and carried on a general banking business, displaying in its windows signs such as: “Industrial Banking,” “Savings Certificates,” “Withdrawals on demand,” “Six per cent, on Savings,” “Be a fortune builder with a savings account —open one to-day;” displaying in its place of business printed papers, stationery, checks, and pass-books, containing and having printed thereon the words, “Bank,” “Bankers,” “Savings,” “Deposits,” “Depositors,” “Interest,” “Withdrawals,” “Balance,” “Interest will be allowed on sums to the credit of each depositor,” “Withdrawals will, as a rule, be made on demand,” “This bank reserves the right to require sixty days notice in writing of its intention to withdraw a deposit,” “Payments will be made only on checks;” soliciting deposits of cash, currency, and commercial paper from the public; accepting deposits of cash, currency, and commercial paper, and issuing and delivering regular bank passbooks to the public, said pass-books containing the printed words, “Bank,” “Bankers,” “Pass-books,” “Deposits,” “Interest,” “Withdrawals,” “Balance.” Because of these facts, “said Bankers Savings and Loan Company did then and there enter into and undertake to conduct and did conduct a banking business, thereby subjecting themselves to and coming under the jurisdiction and supervision of said R. E. Gormley as State superintendent of banks;” and because of these facts, petitioner was led to believe that said bank was a legitimate banking institution governed and controlled by the laws of the State, and she did deposit in said bank, on January 28, 1933, $863.12, which sum was appropriated by the
It is further alleged, that the failure of the superintendent of banks to perform his legal duties and his failure to examine said bank was wilful and wanton, and was the direct cause of the loss of petitioner; that because of the manner of operation of said company, such as its signs, etc., already set out, said Bankers Savings and Loan Company, under the banking law (Ga. L. 1919, pp. 135 et seq., art. 1, sec. 4, art. 7, sec. 1), was a bank as there contemplated, which law “required the said Gormley as State superintendent of banks to examine and supervise,” and had he complied with the above section “he would have examined, supervised, and taken possession of said bank prior to the date of petitioner’s said deposit, and thereby prevented the loss petitioner sustained;” that because of the manner of the operation of said company, as
To this petition the defendants filed a general demurrer, which the court overruled. This writ of error is prosecuted to test the correctness of that ruling. The allegations of the petition charge that Gormley as superintendent of banks failed to examine into the affairs of the Bankers Savings and Loan Company, as required by law; that if he had examined it he would have discovered that it was totally insolvent and was being operated solely for the purpose of cheating and defrauding its depositors, and would have taken charge of it; that he failed and refused to take possession of it after notice of its manner of operation and after requests that he take possession of its assets, and that had he performed his duties and examined into and taken possession of its affairs, the plaintiff would not have had the opportunity of depositing her money therein. Therefore we are here concerned with the failure of the superintendent of banks to perform certain duties alleged to have been imposed upon him by the laws of the State governing the conduct of his office, by reason of which failure plaintiff claims injury and damage. Gormley as superintendent of banks is a public official (Code, § 13-301 et seq.), and in pursuance of § 13-306 he gave the required bond, with the United States Fidelity and Guaranty Company as surety, conditioned that he would “faithfully discharge, execute, and perform all and singular the duties required of him, and which may be required by the consti-, tution and laws” (§ 13-306). It is declared that the superintendent of banks shall be liable on his official bond “to any person, firm, or corporation injured on account of the failure of the superintendent . . to faithfully discharge the duties of his office. Suit may be brought thereon in any court of competent jurisdiction, in the name of the State for the use of the injured party.” § 13-321. There can be no doubt that plaintiff has the right to sue on the bond given, and that her suit is properly brought.
As a general rule “the failure of a public officer to comply with the laws governing and regulating his powers and duties . . usually subjects such officer to a civil action for damages.” 22 R. O. L. 478. It is a well-established principle that a public official who fails to perform purely ministerial duties required by law
It will be noted that in defining what are “banks” within the meaning of the banking act the Code expressly excludes “building and loan associations or similar associations or corporations.” It declares (§ 16-201) : “The name ‘building and loan association/ as used in this chapter, shall include all corporations, societies, or organizations or associations doing a savings and loan or investment business on the building society plan, viz.,- loaning its funds to its members, whether issuing certificates of stock which mature at a time fixed in advance or not, except those which restrict their business to the county of their domicile and not more than two other adjacent counties.” In McIntosh v. Thomasville Real Estate & Improvement Co., 138 Ga. 128 (74 S. E. 1088, Ann. Cas. 1914C, 1302), the Supreme Court said: “In order for an incorporated company to come within the classification of like character to a building and loan association, so that it may conduct business on the plan of a building and loan association and escape the penalty of taking an excess of legal interest, its charter must indicate that its method of business with relation to mutual participation in profits and losses in loans made by it has some distinctive feature of the plan of a building and loan association.” By an act approved August 16, 1913 (Ga. L. 1913, p. 54; Code of 1910, § 2878; Code of 1933, § 16-101), it was declared: “And the term ‘other like associations’ shall include a corporation organized to do a general savings and loan business, and among other things lending its funds to members of the industrial and working classes, or others, and secured in whole or in part by personal indorsements and its own fully-paid or installment stock, or its own fully-paid or installment certificates of indebtedness, or other personal property. . . Provided, however, and nevertheless, the associations referred to and as defined herein shall not be compelled to-lend their funds exclusively in the manner hereinbefore specified, but shall in addition thereto also have authority to make loans to members of the industrial and working classes and to all other persons, due at fixed intervals not exceeding twelve months, and
The charter of the Bankers Savings and Loan Company states, in paragraph 4, that “The particular business of said corporation is to be of the nature of general investment and loan business Section 3 states the object and purpose of the corporation to be pecuniary gain to its stockholders, “and to promote and encourage savings, and to establish an institution where aid may be extended its stockholders and others by extending them- financial assistance, and to do any and all things as are now or may be hereafter allowed a corporation of similar character under the laws of Georgia.” It prays for the right “to lend to the stockholders of said corporation, or to others, the money accumulated by it from time to time, and to make such loans upon such securities, real or personal, and upon such terms, conditions, and under such contracts, rules and regulations as its constitution and bylaws, not inconsistent with law, may set out.” The charter further authorizes the company to secure the repayment of loans by “pledge of personal property, or by mortgage, or deed of trust or other conveyance of real estate, or by the transfer of its stocks, or by such other manner as the law might permit.” It also authorizes the company to fix, by its constitution and by-laws, interest, or charges, or other conditions under which it will dispose of its money to its stockholders, and the manner in which it may “award or lend its assets to any member or stockholder according to the value of his shares, upon such reasonable charges and conditions as may be fixed by said constitution and by-laws.” It authorizes the corporation to “acquire and own its own stock or stocks of
Dissenting Opinion
dissenting. In passing on a general demurrer to a petition, the allegations of fact must be considered as true; and so considering the allegations of fact in this petition, I think that a cause of action was set out, and that the court properly overruled the general demurrer.