State v. Kelsey

| Mo. | Oct 15, 1886

Norton, J.

The indictment in this case was found by the grand jury of Morgan county, and is based on section 1350, Revised Statutes. On the trial of the cause in the Cooper county circuit court, where the cause had been transferred by change of venue, defendant was convicted, and the cause is before us on his appeal.

It appears from the record, and the fact is conceded by the Attorney General, that defendant was the owner of and conducting a. private bank in the town of Versailles, Morgan county, under the name of J. B. Kelsey & Company, and it is claimed and insisted upon by counsel for defendant that his conviction under said section 1350, on which the indictment is based, is wrongful. In support of this contention it is argued that said section 1350 applies and was intended to apply only to those engaged in conducting incorporated banks, and not to persons engaged in conducting the business of private banking. This contention involves the construction of said section, which is as follows : “If any president, director, manager, cashier or other officer of any banking institution doing business in this state, shall receive or assent to the reception of any deposit of money or other valuable, thing in such bank or banking institution, or if any such officer or agent shall create or assent to the creation of any debts or indebtedness by such bank or banking institution, in consideration, or by reason of which indebtedness, any money or valuable property shall be received into such bank or banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof, shall be punished in the manner and to the same extent as is provided by . law for stealing the same ■amount of money deposited, or valuable thing: provided, that the failure of any such bank or banking institution shall prima facie evidence of knowledge on the part of any such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit.”

In determining the question whether it was the intention of the General Assembly in the above enactment to include only the president, directors, manager, cashier or other officers of incorporated banks, and not persons forming a voluntary association or partnership to engage in the business of private banking, we are justified in looking at the state of the law prior to the above enactment to discover the evil the statute was designed to remedy. Prior to 1870 the stockholders in an incorporated bank under the constitution of 1865 were only individually liable for the debts of the corporation to an ■amount double the amount of the stock owned by them in the corporation. In 1870 an amendment to the constitution of 1835 was adopted wherein it is declared that “in no case shall any stockholder be individually liable in any amount over and above the amount of stock owned by him or her,” and in the case of Schricker v. Ridings, 65 Mo. 208" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/schricker-v-ridings-8005644?utm_source=webapp" opinion_id="8005644">65 Mo. 208, it was held “that under thia amendment a stockholder is not liable for a debt of the ■corporation if he has paid the whole amount of stock subscribed or owned by him.” The amendment adopted in 1870 was literally inserted in the constitution of 1875, •and in view of the then existing state of the law, that the directors and managers of an incorporated bank held its capital stock and property in trust for creditors and stockholders, and that creditors could not hold the stockholders individually liable beyond or over and above the amount of stock owned by them, in order to secure a faithful- administration of the trust and give to persons becoming creditors by depositing their money in such banking corporation, an additional guarantee, section 27, article 12 of the constitution, was inserted in the constitution of 1875, and is as follows: * * * “It shall be a crime, the nature and punishment of' which shall be prescribed by law, for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits, or 'the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances; and any such officer, agent or manager, shall be individually responsible for such deposits so received, and all such debts so created with his assent.”

Said article 12 is entitled corporations, and is devoted to that subject, and contains twenty-seven sections, the first eleven of which are devoted to corporations generally, the next thirteen to railroads; and the next three to banks, of which section 27 above quoted is one. The irresistible inference to be drawn from this is, that the words banking institution were intended to- apply only to incorporated banking institution's. This inference is strongly supported by the further fact that it only declares it to be a crime for any “president, director, manager or other officer” of any banking institution to assent to the reception of deposits, etc. All the persons above designated are such, as are necessarily connected with incorporated banks, as will be seen by reference to sections' 906 and 909, Revised Statutes, article 7, providing for the incorporation of banks. Said section 906 provides that ‘ ‘ the affairs and business of such corporations shall be managed by a board of directors or managers;5 ’ and said section 909 provides that “ the board of directors shall furnish a statement * *

* certified under oath * * * by the president and cashier of the actual condition of such corporation.” State ex rel. v. Clark, 54 Mo. 216" court="Mo." date_filed="1873-10-15" href="https://app.midpage.ai/document/state-ex-rel-perry-v-clark-8004241?utm_source=webapp" opinion_id="8004241">54 Mo. 216; State v. Pemberton, 30 Mo. 376" court="Mo." date_filed="1860-07-15" href="https://app.midpage.ai/document/state-v-pemberton-8000858?utm_source=webapp" opinion_id="8000858">30 Mo. 376; State v. Pitts, 51 Mo. 133" court="Mo." date_filed="1872-10-15" href="https://app.midpage.ai/document/state-v-pitts-8003779?utm_source=webapp" opinion_id="8003779">51 Mo. 133.

That incorporated banking institutions were the •only banking institutions intended to be embraced in :said section 27 is further, if not conclusively, shown by the provision contained in it “that any such officer, agent or manager shall be individually responsible for such deposits so received and all such debts so created with his assent.” As the liability of the owners of a private bank for its debts is not limited to the actual amount of capital invested by them in the business, but •extends individually to each and all of them to the extent of subjecting what each or.all of them may own to the payment of its debts, it was a work of supererogation to add the above words to the section, if private banks were intended to be included in the words banking institution. The liability of persons engaged in conducting a private banking business for payment of debts contracted is just the same as that of partners conducting ■any other business. It is provided in said section 22, ■article 12, which is one of the sections relating to railroads,’ that, “No president, director, officer, agent or employe of any railroad company shall be interested in furnishing materials or supplies to such company.” * % * Can it be pretended that any other than an incorporated railroad company was intended by the use of the words “any railroad company?” We think not. McNichol v. U. S. Mercantile Agency, 74 Mo. 463. From the fact that said section 27 is found in ah article of the constitution devoted to “corporations,” and the further fact that all the persons designated in the section are necessarily connected with the business of con■ducting an incorporated bank, in view of these facts and in consideration of the object sought to be accomplished by the section, we are of the opinion that the words “banking institutions” used in the section were intended only to embrace incorporated, and not private, banks. This conclusion would be fortiñed by the debates of the convention if we were at liberty to refer to them.

The only remaining question in this branch of the case is, did the legislature, in the enactment of section 1350, supra, which constitutes the basis of this prosecu-: tion intend to go further and include private banks. We are of the opinion that it did nob, and for the following reasons: In 1876, in the case of Fusz v. Spaunhorst, it was held by the circuit court that said section 27 of the constitution was not self-enforcing, but that it requires legislation to enforce it, which judgment was subsequently affirmed by this court in 67 Mo. 256" court="Mo." date_filed="1878-04-15" href="https://app.midpage.ai/document/fusz-v-spaunhorst-8005902?utm_source=webapp" opinion_id="8005902">67 Mo. 256. Thereafter the Greneral Assembly, in 1877, enacted a statute for this purpose, which was carried with a slight amendment, into the Revised Statutes of 1879 as section-1350, which is copied in the first part of this opinion, and upon which the indictment in this case is based that the purpose of the legislature was only to give-efficacy and force to the constitutional provision, we think it. manifest from the language used in said section 1350.

It will be observed that the statute provides that ► y If any president, director, manager, cashier or other officer of any banking institution,” following literally the language employed in section 27 of the constitution, from which we must presume that they were used in the same sense they were used in said section 27. If, as we-have shown, that the words, any banking institution, as used in section 27 of the.constitution referred, and were intended to refer to incorporated banks only, and not to-private banks, it follows necessarily that the same words used in the same connection by the legislature in passing section 1350 to put in force said section 27 must be construed the same way and as meaning the same thing in the statutory enactment that we have shown they mean-in the organic law, from which they were exactly and literally copied.

It will be observed that said section 27 created both a-criminal and civ-il liability for doing the acts therein specified, and the correctness of the conclusion above announced may be further demonstrated by the fact that the same legislature which passed section 1350 to enforce the criminal liability created by said section 27, also passed section 918, article 7, Revised Statutes, page 163, to enforce the civil liability, which was also created by section 27, and in effect declared under the rule, expressio unius exclusio alterms, that said section 918 should not apply to private banks by providing in section 924 that-certain other sections’ of the same -article, viz: sections 909, 910, 911 and 912 should apply to private bankers. If the legislature, in the passage of said section 918, did not intend to make it apply to private bankers, I am unfamiliar with any process of reasoning, which would justify the conclusion that they did intend that section 1350, passed at the same session to enforce criminal liability, should apply to such bankers.

For the reasons given the judgment is reversed and the prisoner discharged.

All concur.