State v. McLean ( 1915 )

Stevens, J.,

delivered the opinion of the court.

This appeal is prosecuted by the state in two cases, No. 18127 and No. 18140, from an order sustaining a demurrer to the indictment in each case, charging appellees, officers and directors of the People’s Bank of Bassfiekl, Miss., with receiving deposits in an insolvent banking establishment. The indictments are alike, and the material or charging part of the indictment, case No. 18140-, is as follows:

“That A. S. McLean, D. W. Dickens, D. N. McLean, V. T. Rudder, Dr. E. N. Blount, O. T. Hathorn, and Jim Oates, in said county and state, on or about the 23d day of April, A. D. 1914, being then and there and for a long time prior thereto agents, officers, managers, and employees of the People’s Bank, a corporation duly incorporated by and under the laws of the state of Mississippi, and domiciled in the village of Bass-field, Jefferson Davis county, Miss., the said A. S. McLean, being then and there the cashier of said bank, and being thereby an agent, officer, employee, and manager of said bank, and the said D. W. Dickens being then and there the assistant cashier of said bank, and being thereby an agent and employee of said bank, and the said V. T. Rudder being then and there the acting president of the bank, and being thereby an agent, officer, manager, and employee of said bank, and the said Dr. E. N. Blount being then and there the acting vice president and a member of the board of directors of the said bank, and being thereby an agent, manager, and officer of said bank, and the said D. N. McLean, O. T. Hathorn, and Jim Oates being then and there members of the board of directors of the said bank, and being thereby agents, officers and managers of the said bank, which said bank was then and there and for a long time prior thereto engaged in the business of receiving on deposit the money and other valuable things of other persons, and as such agents, officers, managers, and employees aforesaid, being then and there engaged in conducting the business of receiving on deposit the money and other valuable things of other persons for the said bank, which said bank was' then and there wholly insolvent and the said A. S. McLean, D. "W. Dickens D. N. McLean, V. T. Rudder, Dr. E. N. Blount, O. T. Hathorn, and Jim Oates, agents, officers, managers, and employees aforesaid, then and there having good reason to believe that the said bank was then and there insolvent, did then and there unlawfully and feloniously receive a deposit in the said bank from -one A. W. King, a depositor, the said deposit' being then and there a check for the sum of seventy-six dollars, and of the value of seventy-six dollars, the property of the said A. W. King, that is to say, the said check then and there consisted of a writing on paper duly signed by J. J. Newman Lumber Company, and drawn on First National Bank of Commerce, Hattiesburg, Miss., directing the said First National Bank of Commerce to pay to the order of the said A. W. King the said sum of seventy-six dollars, and which said check was then and there duly indorsed by the said A. W. King, and which said check was then and there received for deposit in the said People’s Bank, and the said A. S. McLean, D. W. Dickens, D. N. McLean, V. T. Rudder, Dr. E. N. Blount, O. T. Hathorn, and Jim Oates, agents, officers,- managers, and employees aforesaid, did not then and there or at any time prior thereto inform the said A. W. King, the depositor aforesaid, that the said People’s Bank was then and there insolvent.”

The indictment seems to have been drawn under section 1169, Code of 1906, as amended by chapter 211, Laws 1912, and is, under the act of 1912, a good indictment.

It is the contention of counsel for appellees, and was the opinion of the trial judge, that chapter 211, Laws 1912, is repealed by section 52, chapter 124, Laws of 1914, commonly called the State Banking Law, in so far as they deal with the offense of receiving deposits while the bank is insolvent. The portion of chapter 211, Laws 1912, material to this inquiry is as follows:

“If the president, manager, cashier, teller, assistant, clerk, or other employee or agent of any bank or broker’s office or establishment conducting the business of receiving on deposit the money or other ■valuable things of other" persons, . . . shall receive any deposit knowing, or having good reason to believe, the establishment to be insolvent without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five year's.”

Section 52, Laws of 1914, deals with the same subject-matter. It has this specific title, “Penalty for Receiving Deposits When Insolvent,” and reads as follows :

“Penalty for receiving deposits when insolvent. The owners or officers or employees of any bank or branch bank who shall receive any deposit knowing that such bank or branch bank is insolvent shall be deemed guilty of felony and punished, upon conviction therefor, by a fine not exceeding one thousand dollars, or imprisonment in the state penitentiary not exceeding two years, nor less than one year or by both such fine and imprisonment, at the discretion of the court, for such offense.”

This entire act of 1914', as indicated by its general title, brought into our statute law new, far-reaching, and constructive legislation, designed to establish a general banking department of the state; to provide for examination, regulation, and control of state banks, under supervision of bank examiners; to fix “qualifications and liability of officers, stockholders, and directors of banking corporations,” and to fix “the qualifications and liability of persons, firms and corporations in the banking business;” to prohibit entirely state hanking, except under the provisions of this act; and to provide for the guaranty of deposits; and for other purposes. The act, among other things, gives the hank examiners complete access to all records, assets, and all information of the most private nature, and makes it the duty of the examiners to liquidate a bank when they find it to be insolvent. Section 291 provides that:

“No corporation except a national bank or postal savings bank shall carry on a banking business, except in compliance with this act.”

This law requires every bank to be incorporated, and its general provisions apply to every state bank in Mississippi, and on and after its approval a -“new order” rules in the banking business -of the state. Section 45 provides that:

“All acts and parts of acts in conflict with this act are hereby repealed in so far as they so conflict, but no provision of any banking* law or other statute of this state shall be construed to be amended, modified or repealed except in so far as necessary to permit the unrestricted operation of this act as applied to banks participating in the privileges of this act.”

And the latter part of section 68 announces that:

“All laws or parts of laws in conflict with this act are hereby repealed.”

It will be noted that section 52 is, in substance, a re-enactment of section 1169 of the Code, as amended by Laws of 1912, with the following two clauses omitted, viz.: “0.r having good reason to believe the establishment to b.e insolvent” and “without informing the depositor of such condition.”

As is well said in the splendid brief of' counsel for appellees:

“Surely section 1169 has not been amended, modified, or repealed for one class of banks” and left in force “for another class of banks;” and that “if there is any conflict in section 52 of chapter 124 and section 1169 of the Code of 1906, so that a repeal for any purpose or for any bank is affected, then such change is made for and applies to all banks and for all purposes;” that “the Laws of 1914 change the conditions existing between the bank and the depositor.”

We cannot escape the conclusion that the enactment of section 52 of the new law repeals section 11691 of the Code, as amended by Laws 1912, and, measuring the indictment in this case by the requirements of section 52, it is defective in failing to charge that appellees knew the bank to be insolvent.

The legislature had under consideration the passage of this general banking law, intended to cover the whole subject-matter of banking, and section 52 was .evidently incorporated- to provide the protection and to define the offense previously dealt with by section 1169. The trial court therefore was, in our judgment, correct in sustaining the demurrer to the indictments, and both cases are therefore affirmed.

Affirmed.