Walton v. Benton , 191 Ga. 548 ( 1941 )

Article 7, section 20, of the banking act of 1919 (Ga. L. 1919, pp. 135, 160) offends article 1, section 1, paragraph 3, of the constitution (Code, § 2-103), and is invalid. None of the decisions of this court thereon, concurred in by only four Justices, are binding upon us. In view of the confused and uncertain state of the law upon this question, no one could have been led to rely upon such decisions as permanently fixing the law; hence there is no occasion for applying the doctrine of stare decisis.

Nos. 13559, 13560. FEBRUARY 3, 1941. On July 3, 1940, an execution issued on September 8, 1923, by T. R. Bennett, State superintendent of banks, against P. W. Walton, and transferred to L. O. Benton Sr., was levied upon certain described property as property of the estate of P. W. Walton Sr. To this levy P. W. Walton Jr. filed an affidavit of illegality, asserting that the execution was issued by virtue of section 20 of article 7 of the banking act of 1919 (Ga. L. 1919, p. 160), and that this portion of the act is unconstitutional and void, because it is violative of article 1, section 1, paragraph 3, of the constitution (Code, § 2-103), in that the act deprives the defendant of his day in court, because he is not given an opportunity by the provisions of the act to contest before any tribunal either the amount of the assessment or the necessity for making the same. Subsequently an amendment or second affidavit asserting other grounds was tendered and allowed filed over the objection of plaintiff in fi fa. Upon a final hearing the affidavit of illegality was dismissed on motion of the plaintiff, and the defendant excepted. The plaintiff, by cross-bill of exceptions, assigns error on the overruling of his demurrer to the affidavit of illegality and his objection to the amendment. The banking act of 1919 was amended in 1925 (Ga. L. 1925, p. 119), and by the amendment the grounds of attack now made upon the original act were met by providing that "any stockholder shall have the right by affidavit of illegality, as in cases of affidavits of illegality to other executions, to contest his liability for such assessment and the amount and necessity thereof. Where an affidavit of illegality is filed with the levying officer he shall return the same, together with the execution, to the superior court of the county of the residence of the stockholder, to be there tried as illegalities filed to executions issued on judgments rendered by said courts are tried." Cases arising under the banking law subsequently to the 1925 amendment are governed by the provisions of the amendment and not the original act; hence are not concerned about the alleged defect in the original act. But the present case arising in 1923 is governed by the original act, and it is necessary to determine the validity of the portion of the act here under attack. This question has been before this court a number of times. In Bennett v. Wheatley, 154 Ga. 591 (115 S.E. 83), by a decision concurred in by only four Justices, the provision of the act here involved was sustained as against the same attack that is made in this case. In a number of other cases subsequent thereto, in some of which the trial courts had held the act valid while in others it had been held invalid, these judgments were affirmed by operation of law, because this court was equally divided on the question. Finally, in Gormley v.Walton, 180 Ga. 660 (180 S.E. 220), by a decision concurred in by four Justices, the act was held invalid upon the ground now urged. Neither of these decisions was concurred in by all the Justices, hence neither is binding upon this court. Nor do the facts justify the application of the doctrine of stare decisis, since the conflict in those decisions showed the uncertainty of the law on the question. This confusion and uncertainty has surrounded the question ever since it was first raised. We agree to the correctness of the decision in Gormley v. Walton, supra, and now hold that the act is unconstitutional in the respect pointed out by the affidavit of illegality, and the reasons upon which our judgment rest are well stated in the dissenting opinion in Bennett v. Wheatley, supra. In view of the 1925 amendment curing this defect of the act, we think further discussion is unnecessary. The affidavit of illegality contained valid ground of attack, and it was error to dismiss the same. All questions raised in the cross-bill of exceptions are controlled by this ruling.

Judgment reversed on the main bill of exceptions, andaffirmed on the cross-bill. All the Justices concur, exceptAtkinson, P. J., and Grice, J., who dissent.