State ex rel. Sparks v. State Bank & Trust Co.

187 P. 1002 | Nev. | 1920

By the Court,

Ducker, J.:

This case is submitted for consideration and decision upon an agreed statement of facts. It appears therefrom that the State Bank and Trust Company was a banking corporation, organized and existing under and by virtue of the laws of this state, and on the 18th day of May, 1908, was ordered into involuntary liquidation under the provisions of section 10, c. 119, of the banking act of 1907, by the district court of the First judicial district of this state. The appellant, Frank L. Wildes, was at the same time duly apointed by the court as receiver of the property and assets of said corporation for the purpose of winding up and liquidating its business and affairs. He duly qualified, and ever since said 18th day of May, 1908, has been, and still is, actively engaged in the performance of his duties.

On the 6th day of August, 1914, appellant filed in .said district court his petition, praying for an order fixing his compensation as such receiver. Thereafter, on the 29th day of January, 1919, the said court in a written decision held that the compensation of the receiver for all services rendered during his receivership is governed by the act of 1915, regulating the compensation of receivers of corporations in cases of involuntary dissolution or liquidation, approved March 29, 1915. It reads:

“A receiver of a corporation appointed in any proceeding heretofore or hereafter instituted for the involuntary liquidation or dissolution of such' corporation and the winding up of its affairs, in addition to his necessary expenses, shall receive as compensation for his services not to exceed two per cent of all moneys or sums received by him, and an additional two per cent of all moneys paid out by him in dividends; provided, however, in case of extraordinary services rendered by the receiver the court may allow him an additional one per cent upon final accounting of all moneys disbursed by him by way of dividends. Any order, judgment, decree, or proceeding allowing, any greater or further compensation than that provided in this act to any receiver of any insolvent corporation appointed in a proceeding for its involuntary liquidation or winding up shall be void.” Stats. 1915, p. 507.

1. Appellant contends that his compensation as such receiver is not regulated or limited by the provisions of this act. Hence this appeal.

2. It is urged primarily that the statute of 1915 is prospective in its operation and has no retrospective effect. As a general rule, a statute will not be construed to operate upon past transactions, but in futuro only. It is a maxim, which is said to be as ancient as the law itself, that a law ought to be prospective, not retrospective, in its operation. Retrospective legislation is not favored, and, except when resorted to in the enactment of curative laws, or such remedial acts as do not create new rights or take away vested ones, is apt to result in injustice. The reason is well expressed in Jones v. Stockgrowers’ National Bank, 17 Colo. App. 79, 67 Pac. 177:

“Every citizen,” says the court, “is supposed to know the law, and to govern his conduct, both as to business affairs and otherwise, in accordance with its provisions. It would be a manifest injustice if, after rights had become vested according to existing laws, they could be taken away, in whole or in part, by subsequent legislation.”

3. From a consideration of the pronounced policy of the law against retrospective legislation, there has been evolved a strict rule of construction in this regard.

“There is always a presumption that statutes are intended to operate prospectively only, and words-ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. Every reasonable doubt is resolved against a retroactive operation of a statute. If all of the language of a statute can be satisfied by giving it prospective action only, that construction will be given it.” United States v. Heth, 3 Cranch, 399, 2 L. Ed. 479; United States v. Alexander, 12 Wall. 177, 20 L. Ed. 381; United States v. Burr, 159 U. S. 78, 15 Sup. Ct. 1002, 40 L. Ed. 82; United States Fidelity Co. v. United States, 209 U. S. 306, 28 Sup. Ct. 537, 52 L. Ed. 804; People v. O’Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684; Ducey v. Patterson, 37 Colo. 216, 86 Pac. 109, 9 L. R. A. (N.S.) 1066, 119 Am. St. Rep. 284, 11 Ann. Cas. 393; White Sewing Machine Co. v. Harris, 252 Ill. 361, 96 N. E. 857, Ann. Cas. 1912d, 536; Lawrence v. City of Louisville, 96 Ky. 595, 29 S. W. 450, 27 L. R. A. 560, 49 Am. St. Rep. 309; 6 Am. & Eng. Ency. Law, 939; 36 Cyc. 1205-1208; 25 R. C. L. 787, 788, 789.

“This rule,” says Paterson, J., in United States v. Heth, supra, “ought especially to be adhered to, when such a construction [retrospective operation] will alter the preexisting situation of parties, or will affect or interfere with their antecedent rights, services, and remuneration, which is so obviously improper that nothing ought to uphold and vindicate the interpretation but the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.” (The italics are ours.)

4. It is apparent that the statute does not deal with anything which is ordinarily the subject-matter of legitimate retrospective legislation, but seeks to establish a different rule of compensation for the services of receivers in a particular class of cases from that which was in force at the time of the enactment. In other words, it seeks to enact a new role of civil conduct entirely prospective in its nature. So the rule against retrospective construction must be given full effect. The language of the statute, “A receiver of a corporation appointed in any proceeding heretofore or hereafter instituted * * *” could have been transposed by the legislature so that no doubt would be left of the intention to give it retroactive operation. If it read, “A receiver of a corporation heretofore or hereafter appointed in any proceeding instituted, * * * ” all doubt would have been removed. It would be reasonable to assume that such a simple and natural transposition of a few words of the same language, clarifying and rendering unmistakable the intention of the legislature, would have been made, if retrospective operation of the statute were meant. The words of the statute, “A receiver of a corporation appointed,” are clearly of prospective operation, as are the words, “proceedings hereafter instituted.” . The only language in the statute of retrospective operation is the word “heretofore,” but this seems to refer to any proceeding instituted, and not to the appointment of a receiver. It is quite possible that a proceeding for the involuntary liquidation or dissolution of a corporation may have been pending in this state when the statute was enacted and a receiver thereafter appointed, so there is nothing incongruous in the view that the legislature intended to provide for such a case, as well as for future proceedings and appointments.

Force is given to this conclusion when we consider the closing sentence of the statute:

“Any order, judgment, decree, or proceeding allowing any greater or further compensation than that provided in this act to any receiver of any insolvent corporation appointed in a proceeding for its involuntary liquidation or winding up shall be void.”

There is nothing retroactive in this language. It cannot be said that the legislature meant to declare any order, judgment, or decree of court, fixing the compensation of a receiver made prior to the enactment, void. Such a construction is unwarranted by the language of the sentence, and, furthermore, would render the provision so palpably unconstitutional as to preclude the idea that retrospective operation was intended by the legislature. If it did not mean the statute to have retrospective operation as to orders, judgments, or decrees of court fixing a receiver’s compensation, it is fair to assume, in the absence of compulsory language to the contrary, that it did not intend such retroactive effect as to the receivership itself. The intention must be deduced from a view of the whole statute and from the material parts of it. On the whole, it cannot be said that there is anything on the face of the statute putting it beyond doubt that the legislature meant it to operate retrospectively. Cooley, Const. Lim. (6th ed.) 77.

As we conclude that the statute is prospective in its operation, and therefore not applicable to the case under consideration, we will not pass upon the constitutional questions raised by appellant. The lower court erred in holding that the compensation of the'receiver is regulated and limited by the act of 1915, for which a reversal is ordered.