122 Kan. 195 | Kan. | 1926
The opinion of the court was delivered by
This is an original proceeding in mandamus to require defendant to issue his check upon the state treasurer for the balance due upon a certificate on the bank depositors’ guaranty fund issued by defendant to a depositor in the State Bank of Hope, which operated under the bank guaranty law, and which failed and was taken charge of by defendant April 20,1922, and for which a receiver was appointed who has completed his administration of the affairs of the bank and certified the balance due on the certificate, which certification has been approved by'defendant, and for a declaratory judgment for the determination of certain questions arising in the administration of the bank guaranty law. The defendant has filed a return. Plaintiff has moved that the peremptory writ issue, notwithstanding the return, thus presenting for decision the legal questions raised by the pleadings.
The first question presented for our determination is: ‘ Should defendant issue his checks on the state treasurer, to be paid from the bank depositors’ guaranty fund as the banks are finally liquidated, or should some other method be followed in the disbursement of that fund?
The pertinent statute reads:
. . After the officer in charge of the bank shall have realized upon the assets of such bank, and exhausted the double liability of its stockholders, and shall have paid all funds so collected in dividends to the creditors, he shall certify all balances due on guaranteed deposits (if any exist) to the bank commissioner, who shall then, upon his approval of such certification, draw checks upon the state treasurer, to be countersigned by the auditor of state, payable out of the bank depositors’ guaranty fund in favor of each depositor for the balance due on such proof of claim as hereinafter provided. . . .” (R. S. 9-204.)
The next question presented is whether the certificate in question bears interest to the date qf payment, or whether interest thereon ceased March 17,1925. The body of the certificate reads as follows:
Topeka, Kan., August 22, 1923.
“This certifies that A. F. Sandow had on deposit in the State Bank of Hope, Hope, Kan., when it was placed under the control of the bank commissioner of Kansas and by him closed on April 20, 1922, the sum of three hundred twelve and 41/100 dollars, subject to the provisions of the bank depositors’ guaranty law of the state of Kansas.
“This certificate bears interest at the rate of 6 per cent per annum from April 20, 1922, until dividends due the holder hereof have been declared and published as provided by section 4 of the bank depositors’ guaranty law of the state of Kansas.”
The next question is whether the officer in charge of the bank has “realized upon the assets of such bank, and exhausted the double liability of its stockholders,” within the meaning of the statute. (R. S. 9-204.) In his certificate William Docking, general receiver, who was the officer in charge of the State Bank of Hope, certified that he had realized upon the assets of such bank and had exhausted the double liability of stockholders, and that he had paid all funds so collected in dividends to the creditors, and he certified the balance due. on the guaranteed deposits. This certificate was approved by the defendant as bank commissioner. With this certificate was a letter of the general receiver to the bank commissioner in which it was stated:
*201 “I have done everything that in my judgment can be done toward exhausting the double liability. All other assets have been realized upon. Whatever is left is in my opinion and the opinion of my counsel worthless and does not justify any further effort to collect. As a practical matter the double liability is exhausted.”
It was stated in the return that while the officer in charge of the bank realized upon all assets, as far as it was practicable for him to do so, it is also true that he has not recovered in full on the double liability of stockholders. Some stockholders paid their double liability in full. Judgments have been rendered against others which the receiver has been unable to collect, in whole or in part, by execution, and he believes such judgments to be uncollectible. Other stockholders have moved from the jurisdiction of the state, and their stockholdings were so small that in the judgment of the receiver and of the defendant the cost of undertaking to collect the double liability would be more than the amount of it when collected. The real question presented for our decision is: Can there be a final closing up of the affairs of the bank before the full double liability has been collected; or, if there are some notes or other assets of the bank which have not been collected? The receivership should not be held open and the general closing of the bank’s affairs and payment to depositors from the bank depositors’ guaranty fund delayed because of the inability to collect noncollectible items. To do so would be to postpone indefinitely, and perhaps forever, the payment of the balance due depositors on their certificates in the bank depositors’ guaranty fund. When all of the assets of the bank and double liability of the stockholders have been collected which, in the judgment of the receiver and his counsel and of the bank commissioner, can be collected, the bank’s affairs are fully administered by the receiver for the purpose of making the payment of the balance due on guaranteed deposits. Under the last provision of R. S. 9-204 any sums which might be collected later upon supposed uncollectible assets, or double liability of stockholders, revert to the bank commissioner for the benefit of the bank depositors’ guaranty fund, until such fund is fully reimbursed for payments made therefrom on account of such failed bank.
Another question is presented with reference to the authority to fix a time within which claims should be filed. While the receiver of a failed bank is appointed by the bank commissioner, the administration of the receivership, for certain purposes at least, is in
The balance due holders of certificates on the bank depositors’ guaranty fund issued to depositors of the State Bank of Hope is $186,461.95, with interest at six per cent per annum since April 20,
“If at any time the available funds in the bank depositors’ guaranty fund shall not be sufficient to pay all guaranteed deposits of any failed bank, the five assessments herein provided for having been made, the bank commissioner shall pay depositors pro■ rata, and the remainder shall be paid when the next assessment is available.” (It. S. 9-204.)
There should be no delay in payment by reason of the fact that the fund is insufficient to pay these certificates in full, but the fund on hand should be paid pro rata to the holders of certificates issued to depositors of the State Bank of Hope. The words “next assessment” used in the statute just quoted should be read in the plural if necessary. That is to say, the defendant should pay pro rata as far as the bank guaranty fund will permit. From the next assessment he should pay the claims in full, if the funds are sufficient. If not, he should pay pro rata as far as the fund will permit, and from the next assessment pay in full, or pro rata, as the fund permits, and thus continue until the certificates issued to guaranteed depositors of the State Bank of Hope have been fully paid.
From what has been said, it necessarily follows that plaintiff's motion for the peremptory writ should be sustained; but since this proceeding is primarily to determine legal questions the writ will not issue unless that becomes necessary.