166 Ga. 820 | Ga. | 1928
(After stating the foregoing facts.) The plaintiffs in error in both bills of exceptions assign error upon the re
We shall first inquire as to the validity of the contract; for if the agreement involved in this case was such as is not authorized by law to be approved by the judge, it would seem to follow that there would remain only the single question as to whether the judge erred in returning the assets to the superintendent of banks, and in not appointing a receiver. Under the provisions of section 7 of article 7 of the banking law of 1919 (Acts 1919, pp. 135, 156), “Upon taking possession of the assets and business of any bank, the superintendent is authorized to collect all moneys due to such bank, and to do such other acts as are necessary to conserve its assets and business, and shall proceed to liquidate the affairs thereof, as hereinafter provided. The superintendent shall collect all debts due and claims belonging to such bank, and by making application to the superior court of the county in which such bank is located, or to the judge thereof if said superior court be not then in session, may procure an order to sell, compromise, or compound any bad or doubtful debt or claim, and on like order the superintendent may sell the real and personal property of such bank on such terms as the court, or the judge thereof, shall direct; but on any such court proceedings the bank shall be made a party by proper notice issued from the court, and the hearing of any such application or petition by the
While this amendment enlarged the powers of the superintendent of banks, so far as sales of any of the assets of the bank of any kind are concerned, the provisions of original section 7 were not altered, although the powers of the superintendent were so largely extended that learned counsel for plaintiff in error says that the questions involved in this case are: “(1) Is a sale of the assets of an insolvent bank, made by the superintendent of banks to trustees for depositors and creditors in consideration of a sum suf
We shall consider whether the liability of a stockholder for an assessment of 100 per cent, upon the par value of his stock can be transferred by the superintendent of banks to a purchaser of the assets of an insolvent bank which has been placed in the possession of the superintendent of banks. Section 7 of article 18 of the banking act of 1919 (p. 190) declares that “The individual liability of stockholders . . shall be assets of such bank, to be enforced only by and through the superintendent of banks.” In order to constitute a sale of a chose in action there must be a transfer to the assignee of the right to proceed in the collection of the debt. The question therefore arises whether the superintendent of banks as an officer of the State can delegate to any assignee the power of enforcing an assessment which the law has said can be enforced only by and through the superintendent of banks. The precise question was not passed upon by Judge Sibley In re Giles, 21 Fed. (2d) 536, but we deem his opinion upon this question, while not at all binding, as persuasive authority entitled to weight. In the case in the United States court the bankrupt, Giles, was a stock
“The act of 1919 establishes a State department of banking, and authorizes the appointment, as its head, of a superintendent of banks, who is to have specified qualifications of age, character, and experience, is to take an official oath, and give a fixed bond. By section 10 of article 2 the superintendent must appoint an assistant superintendent and needed bank examiners, each of whom must take the same oath and -give bond. The assistant is authorized to act as superintendent in cases mentioned in article 2, § 3. Article 7 deals with failed banks, and section 9 thereof provides: ‘The superintendent may, under his hand and official seal, appoint an agent to assist him in taking possession of, liquidating, and distributing the assets of any bank under the provisions hereof. . . The superintendent may authorize such agent to perform such duties connected with such liquidation and distribution as the superintendent himself could in person do and perform. By section 23, the compensation of the agent is to be paid from the assets of the liquidated bank. Section 10 contains nothing important here. Section 20 of article 7, as amended in 1925 (Acts 1925, p. 130) provides: ‘Within ninety days after the superintendent of banks has taken possession of the assets and business of any bank, as in this
“A public officer is in a large sense an agent, and falls within the general rule that an agent in whom is reposed trust and confidence, or who is required to exercise discretion or judgment, may not intrust the performance of his duties to another without the consent of his principal; but, having exercised his discretion and determined the propriety of an act, he may delegate to a subagent the execution of merely mechanical, clerical, or ministerial acts not involving judgment or discretion. 31 Cyc. 1425, 1428. Specifically of public officers it is said: ‘In those cases in which the proper execution of the office requires on the part of the officer the exercise of discretion and judgment, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and, unless power to substitute another in his place
“The question therefore narrows to whether the legislature has provided for a delegation of the power by section 9 of article 7 of the act of 1919. That section seems to contemplate the appointment of a liquidating agent for each bank taken in charge by the superintendent. There is nothing, however, to prevent the same agent
The similarity between the provisions of our State banking act and those of the national banking act upon several subjects has frequently been observed by this court. In the recent case of Jackson v. McIntosh, 12 F. (2d) 676, the Circuit Court of Appeals held that the provision of Bev. St. § 5234 (Comp. St. § 9821), that on order of the court the receiver of a national bank “may sell all the real and personal property of the association,” does not authorize a disposition of such property which is not a sale, and that a change in the beneficial ownership of the thing dealt with, and a price paid or promised, and certain or capable of being ascertained, are essential ingredients of a sale. Both of these principles are involved in the decision in the case at bar; for it was insisted by the petitioners in the lower court that the contract by which the superintendent of banks in the case at bar transferred all of the assets, including the assessment of 100 per cent., to the trustees named in the contract did not effect a change in the beneficial ownership, and was without consideration, as well as otherwise in violation of the banking act of 1919. In Jackson v. McIntosh, the Circuit Court of Appeals held that a proposed transfer of all of the assets of the Georgia National Bank of Athens (with certain reservations) by its receiver to a corporation organized for the purpose, in consideration of the delivery of its debentures to-the receiver for the amount due each creditor, payable, with interest, on or before five years, and secured by the assets conveyed, to be placed under control of trustees, and the agreement of the corporation to apply the proceeds of such assets, above expenses of their liquidation, to the payment of the debentures until fully paid, but without liability of the corporation or its stockholders, is not a sale of the assets, within Bev. St. § 5234 (Comp. St. § 9821), but is a delegation to the corporation of the receiver’s statutory duty to collect what is owing to the bank, and the receiver is without authority, with or without the court’s approval, to make such transfer.
Comparing the provisions of the sale proposed in the McIntosh case, supra, with the contract made with the superintendent of
The contention is also made that the superintendent of banks is an executive officer appointed by the Governor, and that in the exercise of his duty he is an administrative official, not subject in any event to the action of the court; and for that reason that the court erred in attempting to revoke his prior order in this case. Upon this subject the Circuit Court of Appeals, in the McIntosh case, supra, said: “In behalf of the appellees it was contended that the application for or the making of such an administrative order as was sought could not be interfered with by injunction. It has been held that such a proceeding by a receiver is an ex parte one, and that an order made therein is not subject to be appealed from by a creditor of the bank. Fifer v. Williams (C. C. A.), 5 F. (2d) 286. The following was said in the opinion in that case: For an attempt to make an illegal or fraudulent sale, doubtless, a remedy by suit would lie, and from a decision in such a suit appeal could be taken to this court.’ The appellants have such an interest in the bank’s assets as to be entitled to resist an illegal disposition of them. In the circumstances disclosed, no adequate legal remedy was available, and a court of equity properly could be applied to for relief.” And so in the present case, as the right of the superintendent of banks to the order obtained depended in the first instance upon the superior court then in session, to which the superintendent applied for the order he obtained authorizing the sale, it can not be said that the same court, in the exercise of its jurisdiction as a court of equity, could not revoke an order when it was seen that it was improper in the first instance, and especially when it was apparent that the order itself was not being obeyed. Under the provisions of our Code, § 5479, equity may intervene in any
Clearly a sale was not eJfected in this case, because the creation of an agency for handling and the administration of assets and the payment of the proceeds to those who are entitled to such assets is not a sale of them. A change in the beneficial ownership of the thing dealt with is an essential ingredient of a sale, and this must be accompanied by a price certain or capable of being ascertained. Butler v. Thomson, 92 U. S. 412 (23 L. ed. 684) ; Gockstetter v. Williams (C. C. A.), 9 F. (2d) 354. To paraphrase the words of Judge Walker in the McIntosh ease, supra, without a real sale, then, the assets of the Bank of Doerun were to be surrendered by the superintendent of banks and be made subject to be sold by the trustees instead of by the superintendent of banks with the approval of the court. Under section 1 of article 7 of the banking act, “the superintendent himself, or by a duly authorized agent, shall forthwith take possession of all the assets and business of such bank and retain possession thereof until such bank shall be authorized by him to resume business, or its allairs be liquidated as herein provided.” The effect of the proposed transaction would be a delegation to the trustees of the superintendent’s duty and authority to collect what was owing to the bank, and a surrender of the assets of the bank by the superintendent was not authorized either with or without the court’s decree to so delegate his powers or to make such a surrender of the assets. Jackson v. McIntosh, supra.
Having held that the court was authorized to hold the attempted sale illegal and void, the question arises whether the court erred in returning the assets of the bank to the superintendent of banks. The superintendent insists that the court had no right to direct him to take charge of and administer the assets of the bank. It is insisted in the cross-bill of exceptions that if the attempted sale
Judgment affirmed on main bill of exceptions; cross-bill dismissed.