187 N.W. 540 | S.D. | 1922
Lead Opinion
The Farmers’ Security State Bank, having received its articles of incorporation, applied to the respondent Himing, as Superintendent of Banks, for certificate of authority to do business as a bank, and to said Himing and the other respondents, as the Depositors Guaranty Fund Commission, for admission under the depositors’ guaranty fund. The appellants sought and procured from the circuit court an alternative writ of prohibition requiring respondents to desist and refrain temporarily from granting to such corporation the rights and privileges sought, and requiring respondents to show cause why such temporary writ should not be made permanent. Upon the return of such alternative writ the circuit court quashed the writ and dismissed the proceeding. Appellants perfected an appeal to this court, and sought from the circuit court an order fixing the amount and conditions of an undertaking to be executed on their part upon appeal by them from the “order” of the circuit court, to stay the execution and performance of such order; but such court, being of the opinion that the matter of allowing a stay on appeal and of fixing an undertaking therefor was a matter discretionary with such court, and being of the opinion that it would be impossible for the court to fairly protect the interests of the corporation which was not a party to the proceedings in the circuit court nor a party to the appeal to this court, refused to' stay the operation of its order and to fix amount of undertaking. Appellants now seek from this court an order fixing the amount of undertaking upon their appeal and granting a stay of proceedings
“A judgment in a special proceeding is the final determination of the rights of- the parties therein. * * *”
The prohibitory relief was asked upon two grounds: That the business interests of the particular community were fully taken care of by two existing banks, in which appellants were financially interested; and that the charter of the said banking corporation had expired because the corporation did not open for business as a bank within a year from the time when its charter was granted. Certainly whether another bank should be allowed in this particular banking community, even if not within the absolute discretion of the Banking Department, should not be controlled by the courts unless there is a clear abuse of the discretion and power vested in such Banking Department; and there is nothing before'us that would warrant us, before the final determination of the appeal and upon such a ground, in suspending the authority of respondents in the premises.
The affidavits submitted upon the application before this court tend to prove that any delay or neglect on the part of the banking corporation in opening for business was due to the action of respondents; that such corporation made its applications to respondents promptly, and has been ready and anxious to open up for business; and that respondents delayed-the issuance of the necessary authority until the existing financial situation should improve. If this banking corporation is entitled to receive the rights and privileges sought for, we must presume great financial loss will result to'it from further delay in granting such rights and privileges. It appears that it has not only procured its articles of incorporation, but has provided itself with a banking room and necessary banking equipment. Upon the other hand, we cannot see where, even though such corporation should wrongfully operate a bank temporarily, any special financial loss can come to appellants; in fact, they have set forth no facts from which we could presume they would suffer any loss whatsoever, other than such loss as might result from their indiret loss through ownership in the stock of competing banks. The personnel of the administrative force of the corporation stands unchallenged. We must presume the corporation to be a safe banking institution. We can find, from the record'before us, nothing whatever that would justify us in calling into exercise any inherent power with which
Appellants’ motions are denied.
Concurrence Opinion
I concur in the view that no occasion'has arisen to call into exercise the inherent power of the court to preserve the status quo pending the appeal. If appellants are right in their contention that the new bank has lost its corporate rights because it failed to open for business as required by law, then neither the admission of the new bank to the guaranty fund, nor the issuance of a certificate 'by the Superintendent of Banks permitting it to open for business would avail it anything. Neither the 'Guaranty Fund Commission nor the Superintendent of Banks can restore the corpse to life, if it is a corpse.
