Fidelity Savings Bank v. Vandiver , 125 Md. 352 ( 1915 )

This case arises from a second application for a writ of mandamus to require the State Treasurer to surrender to three Savings Banks located in Allegany County, Maryland, certain bonds, severally deposited by them with the State Treasurer, in compliance with the provisions of three several Acts of Assembly amending the charters of the respective banks.

The first application and the opinion of the Court in that case are reported in 120 Maryland, 619, and the facts with a single exception will be found fully stated in the opinion in the former case. The additional fact which has transpired since the first decision was rendered, was the passage by the General Assembly of 1914, of an Act designated as Chapter 781. By that, after the recital of the antecedent legislation, it was provided in section 2 as follows:

"Be it further enacted by the General Assembly of Maryland, That the Treasurer of Maryland be, and he is hereby authorized and empowered and directed forthwith to surrender to each of the said savings banks such bonds or securities as may have been deposited with him by each of said banks, by virtue of the provision of Chapter 109 of the Acts of the General Assembly of 1892, and any amendments thereto, and that this Act shall be construed retrospectively as well as prospectively."

The provisions of the statute under which the deposits were made required them to be registered in the name of the State Treasurer, officially, and held as a trust under and pursuant to the Act, "and the same shall be held by said Treasurer in trust as security for the depositors." The effect of this legislation was to constitute a designated State official as a trustee for certain specific purposes; the trust was one created by an Act of the General Assembly, and since an Act of the Legislature is always subject to repeal by a succeeding Legislature, the trust must be construed as analogous in many respects to a trust created by an individual with a reserved power in the person creating it of terminating the trust. As was pointed out in a former opinion, the effect of this was to make the position of the depositors similar to that of cestui quetrustent — they were not technical cestui que trustent, for that position could only arise upon the failure of the banks, and a necessity to have recourse to the securities deposited for the benefit of the depositors. But a condition was created which gave to the depositor a distinct interest in the preservation of the fund in the hands of the official trustee. This position the Legislature had attempted to alter at its session of 1912, by a series of Acts repealing so much of the previous legislation as required the making of these deposits. In 120 Md. it was held, that while the Act of 1912 (Ch. 828) was perfectly competent legislation so far as all future depositors were concerned, it could not operate so as to affect those who had become depositors prior to the passage of the Act of 1912, for the reason that the Act could not be given a retroactive effect unless it appeared either by express language or necessary implication that such was the legislative intent, and that was not to be found in the Act of 1912. It was to cure this omission that the Act of 1914 was passed, wherein by the last sentence of the section already quoted it was enacted "that this Act shall be construed retrospectively as well as prospectively." There can thus be no doubt whatever of the legislative intent, and that being the case and the Legislature having in express terms declared that the Act was to operate retrospectively, it is the duty of the Court to give effect to that expressed purpose. With the wisdom or unwisdom of such legislation it is not the province of this Court to deal, all that the Court is called upon to do or can properly do, is to carry out and give effect to the legislative enactment, whenever that enactment does not transcend the constitutional power of the Legislature.

No vested right existed in any depositor to the bonds deposited with the State Treasurer, or any of them; no section of the Constitution was violated by the passage of the Act.

The petitioners for the mandamus were, therefore, entitled to the relief sought and the writ should have been issued.

The order must accordingly be reversed and the case remanded to the Circuit Court for Anne Arundel County, to the end that the writ of mandamus may issue as prayed.

But while the action of the lower Court must be reversed the costs will be imposed on the appellants. The legislation which gave rise to this case was of a purely private character, for the benefit of the appellants; and in his refusal to surrender the bonds of State Treasurer was but discharging a plain duty. He could not in the absence of a valid order of Court comply with the request of the appellants without subjecting himself to the possibility of a charge of dereliction of duty, and of imperiling his bond.

Order reversed and cause remanded that the writ of mandamusmay issue in accordance with the prayer of the petition; costs tobe paid by the appellants.