Van Steenwyck v. Sackett , 17 Wis. 645 ( 1864 )

The following opinion was filed October 11, 1862.

By the Court,

PAINE, J.

A majority of the .court is of the opinion that it is incompetent for the legislature to amend the Banking Law without submitting the amendment to a vote of the people. The law itself so provides, and this conclusion seems necessarily to result from the view taken of the nature of that law in the case of The State ex rel. The Reedsburg Bank, vs. Hastings, 12 Wis., 47. We there held that the Banking Law was in the nature and had the force and effect of a constitutional provision. The people reserved the power to legislate upon that subject to themselves. They exercised the power, and, in the act adopted, expressly provided that no amendment should be in force until submitted to a vote of the electors and approved by them. It was as competent for the people to withhold from the legislature the power of amending this act, as to withhold the power of amending the constitution itself. And without such a provision, the reservation of the power to enact the law in the first instance would seem to have been a mere idle ceremony. Chapter 47, Gen. Laws of 1855, was never submitted to a vote of the people, and we must consequently hold that its provisions, some of which are now found inserted in the Revised Statutes, are not in force.

We do not say that it is impossible for the legislature to impose any new duties on banking corporations in common with others, as incidental to the exercise of other acknowledged powers of legislation. Possibly such duties might be imposed in the exercise of the police power. But if such legislation were sustained, it would be upon the ground that it was not an amendment of the Banking Law, but a proper exercise of power outside of the scope and object of that, and by which its provisions were in no way affected. But the act of 1855, above referred to, professed to amend the Banking Law, and the nature of its provisions is such that it can only be sustained as an amendment to that law.

Holding, therefore, that it is not in force, it follows that the defendants could not have been compelled to execute the warrant of attorney upon which this judgment was entered. Yet. they did voluntarily execute it. And having done so, if the judgment entered upon it is in all other respects regular and just, we do not think it should necessarily be set aside merely because the defendants could not have been compelled to execute the warrant of attorney. The defendants might have gone into court and confessed judgment, yet they could not have been compelled to. But if they had done so, the mere fact that they, could not have been compelled to, would be no good reason for setting the judgment aside. It is equally true when they authorize another to confess judgment for them.

The counsel for the respondents contended that the bank comptroller was not the proper person to enter up these judgments ; that his duty in such a case as is averred in the complaint is prescribed by section 25 of the original Banking Law of 1852, which has not been changed, and which requires the comptroller, in such a case, to apply to the circuit court of the county where the bank is located for the appointment of a receiver &c. I think his construction of this section1 is correct, and that, under the proviso to be found in it, a stockholders’ bond like the one in question is not such a security as the comptroller is required to reserve and sell, but that it would properly pass to the receiver to be enforced by bim in an action. The securities which the comptroller is required to sell are obviously those required to be deposited under the provisions now found as sections 22 and 23, chap. 71, R. S. 1858, being of the kind usually transferred in the stock markets. And it is obvious from the language of section 25 above referred to, now found as sec. 40 of the chapter just cited, that all securities except those reserved by the proviso were intended to be passed to the receiver to be enforced by him. Such, therefore, being the mode prescribed by the original Banking Law, I think that the provision now found as sec. 44, requiring the comptroller to proceed upon the bond, never having been submitted to the people, is not in forbe, and that the proper course would have been to have had a receiver appointed and that he should have entered up this judgment.

But the judgment would have been the same as it now is. And my brethren are of the opinion that although, strictly speaking, it should have been entered up by the receiver, still the fact that it was entered by the comptroller does not necessarily avoid it, but that it may be allowed to stand and be enforced by a receiver hereafter appointed if necessary. I have assented to this conclusion, though with considerable doubt and hesitation. True, the objection does not reach the merits or justice of the judgment; but to disregard it is certainly tolerating considerable latitude in the mode of arriving at what the statute provides for.

The objection that no notice was served upon the bank is not sustained by the affidavits of the president and cashier. They swear merely that no such notice as the law required was served, which is not a denial that a notice was served, but fairly implies that one was served,_while it asserts only that in their opinion it was not such an one as the law required.

The original Banking Law (sec. 25) authorizes this proceeding after the securities deposited had remained depreciated ninety days. This was amended by changing the word “ninety ” to “sixty,” by tbe 12tb subdivision of sec. 1, cbap. 98, Gen. Laws of 1858, which kas submitted to and approved by a vote of the people. T í objection, therefore, that the complaint avers only that the securities remained depreciated for sixty days instead of ninety, is untenable.

The order setting aside the judgment is reversed, with costs.

A rehearing was afterwards granted, and at the January term, 1864, the cause was further argued by H. W. & D. K., Tenney, for the respondents, and Winfield Smith, Attorney General, for the appellant; and was disposed of by the following opinion.

By the Court, PAINE, J. A motion for rehearing was granted in this case upon the ground that it did not appear that any bills had been delivered to the bank for circulation after the execution of the bond, a point that was not considered in the former decision.

But after an elaborate re-argument, we are of opinion that'the former decision must be adhered to. And we place it upon the ground that the supervision which courts exercise, on motion, over judgments entered upon warrants of attorney is of an equitable character, and the burden is on the party moving to show that he has been or will be subjected to some wrong or injustice, before the court will interfere. There is a release of errors, and it is therefore in vain to point out mere technical errors or irregularities. The courts will interfere and control these judgments to prevent wrong and injustice, but the moving party shows none.

The order setting aside the judgment is reversed, as according to the former opinion.