82 Kan. 533 | Kan. | 1910
The opinion of the court was delivered by
The state on the relation of the attorney-general began proceedings in mandamus against the bank commissioner and the state treasurer, alleging that they had denied to national banks the privilege of participating in the benefits of the act (Laws 1909, ch. 61; Gen. Stat. 1909, §§ 537-552) providing for the creation of a depositors’ guaranty fund, and asking an order requiring them to recognize such right. The bank commissioner filed an answer stating that upon the strength of an opinion of the comptroller of the currency, to the effect that national banks could not take part in such guaranty fund, he had refused to allow them any participation therein, and asserting as a reason why he should not be required to do so that the part of the act relating to national banks is void. A large number of national and state banks were made parties defendant. Some of them filed a plea in abatement, asking that the action be dismissed on the ground that no real controversy exists between the plaintiff, represented by the attorney-general, and the defendants against whom the writ is asked. The state moved that this plea be stricken from the files, and this motion has been argued and submitted for decision.
While strictly speaking nothing is now before the court for action excepting the motion to strike the plea in abatement from the files, various other matters were incidentally discussed at the hearing, and it seems desirable at this time, so far as possible, to settle all questions of practice, so as to facilitate a final decision.
Doubts have been suggested concerning the pro
“Technically, in mandamus the only necessary parties are the plaintiff, who asserts the right to have an act done, and the defendant, upon whom the public duty rests to perform it. The practice is common and commendable to bring in other persons who are likely to be injuriously affected by the judgment, in order that they may have an opportunity to be heard in their own behalf, and in a proper case the court will suspend proceedings until this is done. (Livingston v. McCarthy, 41 Kan. 20.)” (The State v. Railway Co., 81 Kan. 430, 435.)
How such defendants shall be brought into court can not be of any real consequence. The service of a writ of mandamus upon them seems inappropriate. A rule to show cause why a peremptory writ should not be issued may be proper, but any method of notifying them of the pendency of the action should be deemed sufficient, since they are brought in for their own protection.
The plaintiff’s pleading also contains allegations regarding the conduct of these additional defendants, but as they do not constitute a cause of action, and are obviously inserted as the basis for an application for an ancillary order, and such application has not been presented to the court, they are immaterial, presenting no issue and requiring no answer.
The bank commissioner in his answer raises no issue of fact, but seeks to present a question as to the effect of the statute. The language of the writ is indefinite, but. by a liberal interpretation it perhaps alleges inferentially that national banks have asked the commissioner to take some action under the bank guaranty law looking to their becoming guaranteed banks, and that he has
The claim presented by the plea in abatement is that no decision should be made involving an interpretation of the bank guaranty statute, because the proceeding is collusive. It will doubtless simplify matters for the court to express its views as to how far the attitude of the parties toward each other is a matter for inquiry. Of course the court can not undertake to interpret a statute because doubts exist as to its meaning, in advance of a situation having arisen requiring action thereunder. In order for judicial power to be exercised with regard to the statute there must be an actual and concrete controvérsy regarding it — a definite act demanded under it on the one hand and refused on the
“A moot case is one which seeks to determine an abstract question, which does not rest upon existing facts. or rights. Where a concrete case of fact or right is shown, we know of no principle or policy of law which will deprive a party of a determination, simply because: his motive in the assertion of such right is to secure-such determination.” (Adams v. Union Railroad Co., 21 R. I. 134, 140.)
“It is universally understood by the bench and bar . . . that a moot case is one which seeks to get a judgment on a pretended controversy, when in reality there, is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, can not have any practical legal effect upon a then existing controversy. . . . When there is an. actual, bona fide contest as to a legal right, an agreement to put the case, when made, by actual exercise of' the right and resistance to it, in such shape that the right can be readily determined by the court, especially when the dispute concerns a matter of public moment,, which should be speedily settled, has never been condemned by the courts. It is a common, everyday practice in every state of the Union. The noted Legal Tender Cases were made up in that way.” (Ex parte Steele, 162 Fed. 694, 701.)
If a resolution of the directors of a national bank asking that it become a guaranteed bank under the state,law has been tendered to the commissioner for his action, and he has refused to receive it, a justiciable con
Pleadings have been filed other than those referred to, but they present nothing requiring action at this time. The plea in abatement will not be stricken from the files, since it may be regarded 'as in effect an answer; but it will not be treated as a preliminary matter, and the court will not try any issue it presents in advance of the final hearing. The parties filing it may at their election stand upon the matters there presented, ■or add anything further they may desire. The plea includes an allegation that no national bank has ever applied for admission to the benefit of the bank depositors’ guaranty fund, or of the act in relation thereto, and no additional pleading is necessary to present the .issue of fact in that regard.
As has already been said, in a mandamus proceeding defendants of whom the performance of no duty is .asked are brought in that they may have opportunity to show that the act demanded would be prejudicial to their rights and ought not to be performed. In the present case the allegations of the alternative writ concerning the conduct of the defendant banks, having relation only to an interlocutory order which has not been asked, will be considered abandoned, and these defend
