State ex rel. Pettenger v. Claypool ( 1861 )

Scott, J.

The provisions of the statute, bearing upon this question, are all to be found in the 41st section of the act of February 24, 1845, “to incorporate the state bank of Ohio, and are as follows :

“ On receiving notice that any such independent banking company shall have committed an act of insolvency, as here-inbefore defined, the treasurer of state, the secretary of state, and the auditor of state, or a majority of them, shall appoint a special agent, who shall immediately proceed to ascertain whether such company has refused to pay its notes in gold and silver coin, when lawfully demanded, and report to the said treasurer, secretary and auditor, the fact so ascertained ; and if from the report so made, the said treasurer, secretary and auditor, or a majority of them, shall be satisfied that such company has suspended the payment of its circulating notes, when lawfully demanded, in gold and silver coin, they shall forthwith appoint a receiver or receivers, and require of him or them such bond and security as they shall deem proper, who shall proceed to take possession of the books, records and assets of every description of such company; collect all debts, dues, and other claims belonging to such company; settle, and with the approbation of an agent, to be appointed by the stockholders for the protection of their interests, compound for all bad and doubtful debts; sell all the real and personal property of said company, and pay over all moneys so made to the treasurer of state.”

The power of removal claimed for the state officers named in this section, is certainly not conferred' expressly by its terms ; and we find nothing in its language, nor in the objects contemplated by it, from which the intention to grant such power can be inferred. The only duties enjoined upon these officers collectively, after ascertaining that a bank has committed an act of insolvency, are the appointment of a receiver, the fixing of the amount of his bond, and determining upon the sufficiency of his securities. The duties of the receiver, when appointed and qualified, do not depend, in the least degree, upon any discretion to be exercised by the officers who appoint him; but are all prescribed bylaw, and embrace all acts necessary to be done in the full settlement of the affairs of the insolvent bank. He is required to make no report to, nor settlement with, the officers in their collective capacity, by whom he was appointed — but is required merely to pay over all moneys which may come into his hands from sales or collections, etc., to the treasurer of state; and neither the auditor, nor secretary of state, have anything to do in the disposition of the moneys thus paid over.

For any failure on the part of the receiver to discharge his several duties with fidelity and due diligence, both he and his sureties are liable on his bond. His duties are his own, imposed directly upon him by the statute, in virtue of his office, and not as the agent or subordinate of the power by whom he was appointed, but to whom he is not made accountable. We know of no case in which it has ever been held that, under such circumstances, the power of removal is incidental to the mere power of appointment, and may be exercised at the pleasure of the appointing party. The power of the president of the United States to remove a cabinet officer, referred to in argument, is not analogous to the present case. He is, by the constitution, invested with the executive power of the government. The members of his cabinet are his, assistants in the discharge of the duties, which the constitution devolves primarily upon him, and for the due performance of which he is responsible to the country.

Nor do we think the case of The People v. The Comptroller (20 Wend. 598), to which we have been referred, is in point. The office in question, in that case, was one which the court regarded as belonging to a class for which the constitution of the state expressly provided, that they should “ be held during the pleasure of the authority making the appointment.”

Eor any injury which may result to public or private interests from the present state of the law upon this subject, the remedy must be sought in the proper quarter.

Information dismissed, and judgment for defendant.

Sutliee, C. J., and Peck, Gholson and Brinkerhoee, JJ., concurred.