8 P.2d 81 | Kan. | 1932
The opinion of the court was delivered by
This is a proceeding for a declaratory judgment. From the record it appears that the plaintiff, Nicholas Martin, is the owner of 100 shares of the capital stock of the Citizens Bank of Hutchinson, a banking corporation organized under the laws of this state, having a capital stock of $200,000 and a surplus of $100,000; that on January 25, 1932, by order of its board of directors, the bank suspended business, and so notified th.e state bank commissioner, who placed a deputy bank commissioner in charge of the business of the bank for the purpose of protecting the rights of all parties concerned. No receiver has been appointed, and the directors of the bank are taking steps toward the liquidation of its affairs. The board of directors of the bank has made application to the United States reconstruction finance corporation for a loan of a sum not exceeding $200,000, which, if made, requires a pledge as collateral for the loan of bonds or other negotiable paper of the bank. The state bank commissioner has given his consent for the directors of the bank to make the loan.
A real controversy has developed as to the right of the board of directors of the bank to make such a loan and to so pledge its as
The trial court found that the defendant bank, acting through its duly constituted board of directors, has full power to negotiate the loan and to pledge the collateral as security therefor. Plaintiff has appealed from that ruling.
The legal question presented turns upon an interpretation of our statute (R. S. 9-130, as amended by Laws 1927, ch. 88, now R. S. 1931 Supp. 9-130). This statute in effect provides if “it shall appear” that any bank is insolvent, or has willfully violated any requirement of the banking act, it shall be the duty of the bank commissioner to take charge of the bank and its assets, and he may appoint a special deputy bank commissioner to take charge temporarily.
“Upon taking charge of any bank, the bank commissioner shall as soon as possible ascertain, by a thorough examination into its affairs, its actual condition; and whenever he shall become satisfied that such bank cannot resume business or liquidate its indebtedness to the satisfaction of all its creditors, he shall forthwith appoint a receiver. . .
Now, to what extent does the bank commissioner, when he takes charge of a bank by a special deputy, and before it is definitely ascertained that the bank is insolvent and the receiver is appointed, supersede the board of directors of the bank in the conduct of its business? The statute itself clearly contemplates that the condition of the bank might be rehabilitated so that the bank could resume business, or that it might be able to liquidate its indebtedness to the satisfaction of all its creditors, as it has authority to do (R. S.
“The taking possession of and closing of a bank by the bank commissioner does not necessarily work a dissolution of the corporation.”
And in the opinion (p. 79 et seq.) it was made clear that, prior to the appointment of a receiver, the board of directors of the bank may proceed to conduct its business under the advice and with the approval of the bank commissioner or his deputy.
Hence, from the wording of the statute, and in harmony with the interpretations previously given, we hold that the board of directors of the bank, with the consent of the bank commissioner, has authority to make the loan in question.
The judgment of the court below is affirmed.