Mulkey v. Bennett

186 P. 1115 | Or. | 1920

JOHNS, J.

1. Section 4568, L. O. L., as amended by the General Laws of 1917, page 154, among other things provides:

‘ ‘ The superintendent of banks shall examine into the condition of such bank and shall ascertain from the best sources of information at his command whether the character and general fitness of the persons named as stockholders and officers are such as to command the confidence of the community in which such bank is proposed to be located. If, upon such examination, it appears that said bank is lawfully entitled to commence business and the directors and officers are competent to engage in the business of banking, and if, in his opinion, the organization of such bank is justified, he shall forthwith issue to such bank, under his hand and official seal, a charter to do banking business. ’ ’

There is no allegation in the alternative writ that the superintendent of banks evw examined into the condition of the proposed bank, or that he ever ascertained from any source of information the character or general fitness of the stockholders or officers of the proposed bank, or whether either of them had the confidence of the community where it was to be located, or that their character or general fitness would entitle them to a charter. Neither is there any allegation that the plaintiffs ever requested him to make such examination and investigation, or that he ever refused to do so. Neither is there any allegation that the stockholders and officers are competent to engage in the business of banking or that the superintendent of banks was ever requested or refused to make any such finding. All of such matters are conditions precedent to the granting of a bank charter, which it was necessary for the petitioners to show and allege. The rule is well stated in 26 Cyc. 435:

“To entitle petitioner to relief the petition or the alternative writ must allege the existence of all such facts as are essential elements of the right and duty sought to be enforced, and show that all things have been done which are required to be done in order to give rise to the right and duty. Accordingly if prerequisities or conditions precedent to the duty to act or to the right to demand action are imposed by statute or otherwise, it must appear that they have been fully complied with and performed, so that the court can determine that a present duty rests on respondent and that a present right to performance is vested in petitioner. And some courts have gone so far as to hold that petitioner should by his allegations anticipate objections to the issuance of the writ and negative their validity. ” Citing People v. Glann, 70 Ill. 232, in which it is said:

“Where a right claimed is dependent on the performance of conditions precedent, it is not sufficient to state a performance in all things generally, but the pleader should allege specially that each condition has been performed and the manner of its performance.”

In 18 R. C. L., page 342, Section 294, it is said:

“Where the right to have a particular act done at the time and in the manner demanded is dependent on some other act having been done or some condition existing, in order to show affirmatively by the petition for the writ that the relator is entitled, as claimed, facts must be stated therein showing that such preliminary act has been done or condition created. ’ ’

2. Plaintiffs allege that the charter was refused by the above written indorsement made on the articles of incorporation and that it was refused for the reason that, in the opinion of Mr. Bennett, another bank was not required at St. Johns under the business conditions then existing; and that such refusal was arbitrary and wrongful. The plaintiffs are the moving parties and it devolves upon them to allege the performance of and a compliance with every specific act provided by Section 4568, L. O. L., as amended, as conditions precedent to the granting of the writ for the refusal to grant the charter. The reason stated by the superintendent of banks is not a legal admission that the plaintiffs have complied with all or any one of such specific provisions. While the demurrer admits all of the allegations of the alternative writ, it cannot be deemed or treated as an admission of any fact which is not alleged.

3, 4. In both the lower and this court plaintiffs contended that the portion of Section 4568, which reads: “And if in his opinion the organization of such bank is justified,” confers upon the superintendent of banks an arbitrary power, denies them equal rights and protection under the law, and is in conflict with Article XIV of the Constitution of the United States. The lower court sustained that contention.

This court must assume that no bank has ever been granted or will receive a charter without a full compliance with the specific provisions of Section 4568, above quoted, as to the conditions of the bank and the character and general fitness of the officers and stockholders and as to whether they are competent to engage in the business of banking. That is not class legislation and until such time as the plaintiffs allege a strict compliance with such provisions of that section of the banking law, no constitutional question is presented and they have no legal right to complain.

The demurrer is sustained, judgment reversed and the writ denied. Beversed.

McBride, C. J., and Bean and Bennett, JJ., concur.