58 P. 978 | Kan. | 1899
Lead Opinion
The opinion of the court was delivered by
In an information containing eleven counts, Harry E. Mason and another were charged with making false entries in the books of the First State Bank of Marion, of which Mason was president, and also of making false statements and reports to the bank commissioner in respect to the financial condition of the bank at stated times. A separate trial was had, at which Mason was convicted of the offenses charged in three of the counts. One was the entry in the books of the bank of a general deposit account under the name of Levi Oglesberger, which was continued for more than a year, and which made it appear that Oglesberger was making deposits and checking out funds from time to time, when in fact he was a myth and the account fictitious. Another was the making of a false statement and report to the bank commissioner of the financial condition of the bank at the close of business on December 27, 1897. The remaining one was falsely entering in the books as a credit of the bank a certain check for $1800
The organization of the bank was completed in 1894, that is, the steps necessary to obtain a charter and make it a corporate body were then taken. Seven persons associated themselves together to conduct a banking business, took a corporate name, fixed the capital stock at $10,000, which was duly subscribed by stockholders, whose names and residences were given, six of whom were residents of Kansas. The articles of association were duly acknowledged, and were filed as the charter of the company with the secretary of state. Section 3 of the banking act (Gen. Stat. 1897, ch. 18, §5; Gen. Stat. 1899, §409) provides that the existence of the bank as a corporation shall date from the filing of its charter. It contains a proviso that the bank, however, shall transact no business except the election of officers, the taking and approving of official bonds, the receipts of payments on account of subscriptions to capital stock, and such other business as is incidental to its organization, until it has been authorized by the bank commissioner to commence the business of banking. Other provisions of the act are that if the bank commissioner upon examination finds that the bank has been duly organized, and has complied with the provisions of the law, he shall issue to it a certificate of authority. (Laws 1891, ch. 43, §§5, 16; Gen. Stat. 1897, ch. 18, §§24, 58; Gen. Stat. 1899, §§411, 421.) It is made unlawful for any individual, firm or corporation to
Another, and a controlling, consideration is the fact that the bank commissioner, whose duty it was to issue a certificate of authority, recognized and treated the bank as one having authority. The state claims that the testimony does not bear the interpretation that no certificate was ever issued, but rather that there was a refusal at the time of the first application and report.- On this point the evidence is meager and unsatisfactory, but assuming that no formal certificate was issued, it is abundantly shown that the bank carried on business for years with the consent and under the authority of the commissioner. There was not only actual authority, but it was accompanied by supervision and control, at least during the period when the offenses charged were committed. There being actual authority, will the inadvertence or neglect of the commissioner to deliver written authority exempt the officers from an observance of the statutory provisions regulating banking? If the commissioner overlooked or failed to issue a formal certificate, and should, after supervising the business of the bank for years and treating it as though it had authority, undertake to prosecute the defendant for doing busi
The fact that the real authority granted was not formally expressed in writing did not make it an unauthorized bank nor absolve the banker from the requirements and penalties of the banking law. This is apparent, too, from the provisions of section 36 of the act, which provides that “ any individual, firm or corporation who shall receive money on deposit, whether on certificate or subject to check, shall be considered as doing a banking business, and shall be amenable to all the provisions of this act.” We think the court ruled correctly when it instructed the jury that, if the evidence proved beyond a reasonable doubt that the bank was duly incorporated under the laws of the state ; ” that it held itself out to the public as a banking institution; that it received money on deposit, either on certificate or subject to check ; that the officers made reports to the bank commissioner when demanded, which reports purported to show that said First State Bank of Marion was a bank and doing a banking business; . . . the officers of such bank who had knowledge of the manner in which such bank was doing business cannot be heard to deny that said bank was duly organized and doing business under the laws of the state of Kansas, and such officers would be liable to punishment for a violation of any of the penal sections and provisions of said banking laws of the state, the same as though said bank had had a certificate from the bank commissioner directly authorizing it to do a banking business.”
None of the objections to evidence can be sustained. We think the books of the bank offered in evidence were sufficiently identified, and that the testimony complained of was properly admitted.
Concurrence Opinion
(concurring specially): I concur in the decision of this case, but I do not approve to the extent stated by Mr. Justice Johnston the doctrine that the state only can raise the question of the validity of corporate organization. If the objectionable portion of the opinion can be understood as applying to matters of mere regularity of corporate organization, it is, perhaps, not subject to criticism, but I fear that it may not be so understood. It seems to me to give countenance to the idea that questions as to the legal validity of corporate organization, and hence of corporate power, can only be raised by the state. I do not believe in that doctrine.