Gormley v. Walton , 1935 Ga. LEXIS 521 ( 1935 )

Gilbert, Justice.

The superintendent of banks of the State levied an assessment and issued a fi. fa. against a stockholder in an insolvent bank under sec. 20 of art. 7 of the act approved August 16, 1919. The stockholder filed an affidavit of illegality, attacking the law under which the assessment was made, on the ground that it was in conflict with art. 1, sec. 1, par. 3, of the constitution of Georgia, which provides that “No person shall be deprived of life, liberty, or property, except by due process of law.” The plaintiff moved to dismiss the affidavit of illegality. The court overruled the motion, and held the act unconstitutional and the assessment made thereunder void. The exception is to that judgment. Held:

1. Section 20 of art. 7 of the act of the General Assembly, approved August 16, 1919 (Ga. Laws 1919, p. 135), is unconstitutional on the ground that a stockholder in a bank is thereby denied due process of law. See on this question, pro and con, Bernnett v. Wheatley, 154 Ga. 591, 606 (115 S. E. 83) ; Bennett v. Schwarz, 154 Ga. 885 (116 S. E. 306). The decision in 154 Ga. 591, holding see. 20 of art. 7 of the act of 1919 constitutional, did not receive the concurrence of all of the Justices, and is not binding. None-of the cases subsequently deóided by this court on the same question is binding authority.

No. 10722. May 18, 1935. O. N. Davie, Jones, Johnston, Russell & Sparlcs, and Mallory C. Athinson, for plaintiff. E. II. George and Miles W. Lewis, for defendant.

2. The act of the General Assembly approved August 26, 1925 (Ga. Laws 1925, pp. 119, 131), amended the banking act of 1919 by providing a method for affording a stockholder a hearing. In the same act it was provided that the provisions of sec. 20 should not apply to any bank which had theretofore been closed and which was then in process of liquidation.

3. The record does not disclose when the bank closed, but does disclose that at the time of the assessment and levy it was “in process of liquidation.” Consequently the case is to be decided under the law as it existed prior to the act of 1925.

Judgment affirmed.

All the Justices concur, except Beck, P. J., and Atkinson, J., who dissent.