Moran v. Cobb

MILLER, Associate Justice.

Appellant, Moran, was appointed by the Comptroller of the Currency, on March 17, 1936, as receiver of the Prudential Bank, hereinafter called Prudential. On April 30, 1936, the Comptroller made an assessment upon the stockholders, including appellee Cobb, for $100,000. Following demand upon appellee for $1,200 on account thereof, and his refusal to pay, appellant, on August 1, 1936, sued to enforce against him the statutory liability of stockholders. The District Court held that the action was barred by the statute of limitations, and this appeal is from the judgment which was entered in favor of appellee.

Appellee’s liability, if any, is to be determined by provisions of the Arizona Constitution¹ and statutes, and the receiver’s cause of action is subject to the Arizona statute of limitations.² Under the provisions of the Arizona statute an action to enforce the stockholders’ statutory double liability must be brought within three years after the closing of the bank.³ The only question of the case is: When did Prudential close, within the meaning of the Arizona statute? The District Court correctly held that it closed, within every fair intendment of the statute, more than three years before the commencement of suit on August 1, 1936.

On March 6, 1933, the date of the President’s proclamation declaring a bank holiday,⁴ Prudential (1) had been for several months, and has been ever since, without a banking house for the conduct of its business ; (2) for several months prior to, and ever since that date, has engaged in none of the usual functions of a bank; (3) specifically, has received no deposits, paid no depositors, honored no withdrawals, made no loans, held no meetings of its board of directors or stockholders, paid no taxes to the State of Arizona, where it was incorporated; (4) several months prior to that date experienced such severe financial difficulties that it assigned all its assets to another bank, the Industrial Savings Bank of Washington, D. C., hereinafter referred to as Industrial, to secure a note in the amount of $270,731.23; in return for which Industrial assumed all liabilities of Prudential to its depositors and other creditors, except liabilities to stockholders. It. is apparent from the situation then existing that for all practical purposes Prudential was closed. That it was closed beyond all hope of reopening is also apparent from the following facts: The book value of all assets was $376,161.15. Of these over $115,000 consisted of loans, discounts and overdrafts; and approximately $172,000 consisted of bonds and securities. Its banking house, and furniture and fixtures accounted for approximately $72,000 more. It had due from other banks less than $1,200, and cash on hand less than $9,000. The note which it gave to Industrial was for the exact amount of its liabilities to creditors and depositors. The country was then in the depths of depression and book values grossly exceeded any possible market price for such frozen assets. In fact, the probability that the assigned assets would be insufficient was so great that directors of Prudential gave their bond in the amount of $50,000 to Industrial; in which the frank statement appears that it was given “in order to induce the Industrial Savings Bank to assume the liabilities of the Prudential Bank * * *.” The assignment contract gave power to Industrial (1) to collect and liquidate the assets; (2) to compromise for less than face value; (3) to foreclose any part thereof at public or private sale without notice to Prudential; (4) to reimburse itself for all liabilities assumed, for interest thereon and for expenses. In addition the agreement provided not only for the bond above mentioned, but also stipulated that the personal liability of the stockholders for all debts and obligations, including the note for $270,731.23, should continue. Upon the transfer of assets, all books and records of Prudential were transferred to the banking house of Industrial. After the bank holiday in March, 1933, Prudential made no application for a license to reopen, received no license, and did not reopen. It never received back any of the assets, never again occupied a banking house, or functioned in any manner as a hanking business of any character. It is apparent, also, from other facts, that no continuation of Prudential as a going concern was ever contemplated and no reopening ever hoped for. After September 26, 1932, Industrial, and subsequently its receiver, exercised dominion and control over all the assets of Prudential which had been delivered to Industrial; brought suit in his' own name thereupon, made sales thereof and otherwise treated said assets as his own, commingling the same with the assets of Industrial, maintaining only a bookkeeping account entitled “Prudential Liquidation Account.” Thereafter another institution, known as Industrial Bank of Washington, was formed and in connection therewith depositors in Industrial, including former Prudential depositors, were indiscriminately paid from said assets a dividend of thirty-five per cent. In June, 1933, the premises formerly occupied by Prudential as a banking house were sold.

A well-recognized principle of statutory interpretation is that, in the absence of some dominant reason to the contrary, a word used in a statute should be given its ordinary and commonly accepted meaning.⁵ An examination of the authorities leads to the conclusion that the word closing, as applied to banks, is not one which has been given a limited or special meaning either by statute or by decision. Certainly, when we look to common parlance and understanding the word has a well known meaning. Apart from such difficulties as arise in the application of the pertinent statute, it would not be doubted that a bank which had gone through the experiences of Prudential was closed. Any other conclusion would seem absurd. An equally recognized principle of interpretation is that a statute should be so read as to avoid an absurd result.⁶

These principles of statutory construction are particularly pertinent in the present case because laws imposing double liability on stockholders of a bank are in derogation of the common law and cannot be extended beyond the words used.⁷ For this reason we refused to read into the federal statute, which establishes double liability on stockholders of national banks, double liability on stockholders of state banks doing business in the District of Columbia, even though we held that the District statute⁸ incorporates all the national bank acts which have to do with the machinery of administration in the case of insolvent banks; gives to the Comptroller the same control and management of an insolvent bank operating in the District as in the case of national banks; and likewise includes all provisions for the collection of debts, the distribution of assets and the enforcement of liability of stockholders.⁹

A minority view is expressed that there can be no closing of a bank within the meaning of the Arizona statute until an involuntary closing takes place, and that no involuntary closing took place in the present case until the Comptroller determined, on March 17, 1936, that Prudential was insolvent. For a number of reasons we think a contrary conclusion is required.

In the first place the minority view seems clearly contrary to the last sentence of the applicable statute, i. e., Section 227, which section reads as follows : “§ 227. Stockholders’ liability. The stockholders of every bank shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements, of such corporation or association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares or stock. In case of the dissolution or liquidation of any bank, the constitutional and statutory liability of the stockholders must be enforced for the benefit of the creditors of such bank by the superintendent of banks or by any receiver. The action to enforce such liability shall be commenced within three years after the closing of such bank, and may be commenced immediately upon the closing of the bank if in the judgment of the superintendent or receiver the assets of such bank are insufficient to meet its liabilities.” [Italics supplied]

In providing that the action to enforce the liability “may be commenced immediately upon the closing of the bank if in the judgment of the superintendent or receiver the assets of such bank are insufficient to meet its liabilities,” the section clearly contemplates two things: (1) that a finding of insolvency by the superintendent or receiver is essential to existence of a cause of action against the stockholders ;¹⁰ (2) that the closing from which the three-year limitation period begins to run may occur before that finding is made. The statute clearly contemplates that the superintendent or a receiver may be in charge of the affairs of a bank which has closed before he makes or, possibly, before he can make any finding of insolvency. Closing therefore may be antecedent' to such finding and may occur while the bank is entirely solvent.

Second, there is nothing in the Arizona statute to suggest that it was intended to give such special significance to the word closing; that, under the facts of the present case, it must be limited in its meaning to an involuntary taking over by a receiver appointed by the Comptroller. This court held in Washington Loan & Trust Co. v. Allman¹¹, that the words by any receiver, used in Section 227 of the Arizona Code, are broad enough in their meaning to include a receiver so appointed; but it did not hold, and the conclusion does not follow, that the words are not broad enough to include, also, receivers appointed by courts;¹² upon voluntary application by stockholders and officers;¹³ and even for causes other than insolvency.¹⁴

Although, as the dissenting opinion points out, there is no provision in Chapter 8 of the Arizona statutes for voluntary dissolution of a solvent hanking corporation as such, it does not follow that dissolution of a solvent banking corporation can be accomplished only by involuntary process. It can be accomplished under other provisions of the Arizona Code relating specifically to voluntary dissolution of cmy corporation.¹⁵ No doubt a state banking corporation can wind up its affairs and go out of existence, also, upon the expiration of its charter;¹⁶ or by reorganization as a national bank.¹⁷ Similarly, a closely held banking corporation might go out oí existence following defalcations by its officers —conniving with an unfaithful bank superintendent who failed to perform his duties under the statute¹⁸ — without a formal involuntary taking over under Section 227.

Third, the statute of limitations is a statute of repose¹⁹ and it seems fair to assume that the Arizona legislature had in mind the repose of possible actions involving stockholders of voluntarily closed banks as well as of those closed involuntarily. It was apparently in recognition of these • guiding principles, concerning the double liability statute and the statute of limitations, that the Arizona legislature chose 'with deliberation the words closing of the hank, used in Section 227, to designate the commencement of the statutory period. Here was an event of common knowledge, which could be expected to arrest the attention of all interested persons, and put them on inquiry as to their rights and liabilities. The effect of the minority view would be that when banks close voluntarily, there can be no closing; hence the stockholders’ double liability would be widely expanded beyond the words used in the statute; and the statute of limitations, far from being a statute of repose, would make possible actions against stockholders for unlimited periods after closed banks had actually passed from the memory of the communities in which they had been located. We cannot impute such an intention to the Arizona legislature.

Fourth, reading the word closing, in the light of certain recent Arizona cases, the definition proposed in the dissenting opinion would produce a highly anomalous result. In fact, according to the reasoning of those cases, Prudential was not only closed, it had ceased to be a bank. In State Tax Commission v. Yavapai County Sav. Bank,²⁰ the Arizona Supreme Court stated, as the essential element in the definition of a bank, that it must be “an institution which receives and pays out deposits”; and in that case refused to permit taxation — as a bank — of a business institution which failed to meet the test thus stated. It is significant that the Arizona Supreme Court reached the same result in another tax case in which a bank had ceased to be a going concern, because it had become insolvent and had been taken over by the bank superintendent for liquidation.²¹

We recognize that as a result of the interpretation which we have given to the Arizona statute, the period actually available for filing suit in a particular cáse may be less than three years; that in one case the period may be less than in another, depending upon the time which elapses between closing and determination of insolvency; in fact that if the determination of insolvency — administrative or judicial — is not made until more than three years after the closing, the provision in the last sentence of Section 227 may operate to bar enforcement of the double liability altogether. However, if insolvency occurs, or reasonably appears to do so, within the three-year period, the statute may well be regarded as a means of securing diligence in making the determination which is essential for institution of suit. It is a prod on the superintendent or receiver to exercise his judgment promptly when insolvency, or a reasonable basis for believing that it may exist, occurs and not to kexp the stockholders on tenterhooks indefinitely by postponing decision in the hope that something may happen to bring the bank back into a condition of clear solvency. At the same time the statute brings similar pressure upon the creditors, either to secure action within the period, from the superintendent or receiver, or to take oilier steps to have the necessary determination made. This would not seem to be beyond legislative power, when insolvency occurs within the period and the cause of action is lost merely because those charged with enforcing it and those whose interests are at stake neglect to take the steps essential to make the foundation for the case within the prescribed time. That is but the usual purpose and effect of statutes of repose. Moreover, negligence or delay upon the part of the superintendent in taking over the bank’s affairs or upon the part of creditors in procuring appointment of a receiver would be as fatal to the statute’s policy of repose for stockholders, after a reasonable opportunity for action in the creditors’ interest, as would similar delay by the superintendent or a receiver in making the administrative finding of insolvency necessary for beginning suit. Both are essential steps preliminary to actual enforcement of the liability and the policy of the statute may well be to force prompt action in taking them, if it can be had. Nor can such a requirement be said to nullify the liability specified in the constitution, if upon the facts it is reasonably possible for both these steps to be taken within the prescribed period.

If, however, the bank docs not become insolvent or there is no reasonable basis for such a judgment, administrative or judicial, within three years from closing, application of the bar nullifies the cause of action and does so without any reference to neglect or delay by the superintendent, receiver or creditors. This constitutes the most serious apparent objection to interpreting the statute as specifying some date antecedent to a determination of insolvency. Whether that position might he sustained upon the view that such a case would be unlikely to occur and therefore abnormal, and that it is better to fix an easily ascertainable date for starting the period in the normal case than to preserve the cause of action for the abnormal one, might present a serious question of constitutionality under the Arizona law. But even if the provision should be held unconstitutional in such an application, it would not follow that it would be so in the others which have been mentioned, and if the present case can be brought within any of them, the provision should be applied according to its terms.

The statute was drawn primarily with the idea that enforcement would occur in Arizona. The occurrence in Arizona of such a cessation of business as took place in the present case, because the hank was experiencing “serious financial difficulties,” would call for intervention by the superintendent of banks under his statutory duty, or for appointment of a receiver.²² The statute no doubt contemplated that in such a situation the superintendent would not disregard his duty and that the creditors would not sleep on their rights. On the facts presented by the record, if Prudential had been doing business in Arizona and had closed there as it did here, with delay in taking over of the bank’s affairs by the superintendent, or in appointment of a receiver similar to that which characterized the Comptroller’s action in this instance, the case would have been one appropriate for applying the bar in such a manner that the period began, to run on September 26, 1932, or, in any event, not later than March 6, 1933. The circumstances of the closing on September 26, 1932, were such that if they had occurred in relation to a bank doing business in Arizona, prompt action should have been taken by the superintendent of banks to take over the management of its affairs. In default of his doing so, the depositors and other creditors should have moved for the appointment of a receiver. The closing was a permanent cessation of business. It was for purposes of final liquidation. Although there was no insolvency if book values were taken at face value, the bank admittedly was experiencing financial difficulties and it is common knowledge that book values at that time more generally reflected an excess than a deficiency of actual ones. Not only was the situation one which would have called for prompt intervention by the superintendent or, lacking that, by creditors to secure a receiver’s appointment, but as it developed within three years from September 26, 1932, or, in any event, from March 6, 1933, it afforded a reasonable basis for a finding of insolvency by one or the other of these officials. The findings show that both Industrial and its receiver commingled the assets received from Prudential with its own and treated them as such. If the contract authorized this, as it seemingly did, insolvency of Industrial was insolvency of Prudential. If it did not authorize it, the commingling was an act of misappropriation which made Prudential’s insolvency almost a certainty, when considered in connection with its condition entirely apart from the commingling. Apart from the stockholders’ liability, Prudential stood stripped of all resources after the transfer, a mere shell of a corporate entity. Standing as such, it clearly was insolvent from the time of the transfer in September, 1932. But if account is taken of the provision made for Prudential’s creditors by the contract with Industrial, the case is little different, except possibly for the period between September 26, 1932, and March 6, 1933. Assuming that insolvency, or a reasonable basis for finding it, did not exist within that period, clearly such a basis existed from shortly after its end. Industrial was closed by the President’s proclamation and did not reopen. Instead, a receiver was appointed, took charge of its affairs and proceeded to liquidate them. In doing so, he carried forward the liquidation of Prudential’s business, commingling the assets and paying depositors of both banks indiscriminately from the commingled funds. In view of that fact, and the further fact that Prudential made no effort to procure a license to reopen, the conclusion is inevitable that reasonable grounds for an administrative finding of insolvency of Prudential existed within three years from September 26, 1932, certainly from March 6, 1933. That being true it would have been perfectly possible for the superintendent of banks, had all these things occurred in Arizona, to fulfill both the essential steps for creating and asserting the stockholders’ liability prior to the expiration of three years from September 26, 1932, or March 6, 1933, namely, to take possession of Prudential’s affairs and to make an administrative finding of insolvency. And in case of his failure to ¡act, the creditors should and could have acted within the period to procure a receiver’s appointment and a determination of insolvency. The cause of action thus could have been perfected and asserted within that period. The case, therefore, is not one in which the constitutional liability would be nullified, without reference to neglect or delay on the part of those whose business it was to act.

Neither is a different result required because the facts occurred in the District of Columbia; for while the stockholders’ liability may be enforced in the District by a receiver appointed by the Comptroller,²³ both the existence and the duration of the liability must be determined by the law of the state of incorporation.²⁴ Consequently the Comptroller is governed by the same limitations of time and conditions for enforcement as would apply to the Arizona superintendent of banks. Whether enforcement is had by action of the one or the other official, the policy of the statute is the same, namely, to secure promptness in perfecting as well as in suing upon the cause of action. In the circumstances presented here that policy was not observed. The Comptroller stood by for more than three years after the bank was closed before determining that an assessment was necessary and appointing a receiver to sue upon the liability. In doing so lie followed the customarily applicable procedure under the national banking laws, but lie neglected to lake account of the fact that the Arizona statute requires the cause of action to be perfected as well as asserted within three years from the closing of the bank, when that can be done, and that under the Arizona statute closing is not identical with determination of insolvency. The error was one not hard to make, but it was, nevertheless, fatal. Since the facts disclose that a reasonable basis existed within three years of September 26, 1932, or in any event from March 6, 1933, both for taking over the bank’s affairs and for finding insolvency by the superintendent of banks, had the case arisen in Arizona, a similar basis existed for action by the Comptroller in these respects within that time. In that period he could have perfected the cause of action and caused it to be asserted. His failure to do so, and the failure of Prudential’s creditors to take steps to procure the appointment of a receiver within the time allowed, preclude enforcement of the liability afterward.

We need go no further than to say that, while a determination of insolvency remains an essential condition of suit, that condition, as well as the filing of suit, must be fulfilled within three years from the date the bank closes for liquidalion, if this can be done, as it could have been done here. So far, at least, the statute is valid. Whether it would be so in case the cause could not be perfected within the three-year period, and if not, what period of limitations might apply under the Arizona laws, are questions not presented by the facts of this case and better left for the consideration of the courts of Arizona when they arise.

Affirmed.

1 Ariz.Const. Art. XIV, § 11: “The shareholders or stockholders of every banking or insurance corporation or association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such corporation or association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares of stock.”

2 Moran v. Harrison, 67 App.D.C. 237, 91 F.2d 310, 113 A.L.R. 505, certiorari denied, 302 U.S. 740, 58 S.Ct. 142, 82 L.Ed. 572.

3 Ariz.Rev.Cdde (1928) c. VIII, § 227.

4 No. 2039, 49 Stat. 1689, 12 U.S.C.A. § 95 note.

5 United States v. Wurts, 303 U.S. 414, 417, 58 S.Ct. 637, 82 L.Ed. 932; Old Colony Trust Co. v. Commissioner of Internal Revenue, 301 U.S. 379, 383, 57 S.Ct. 813, 81 L.Ed. 1169; De Ganay v. Lederer, 250 U.S. 376, 381, 39 S.Ct. 524, 63 L.Ed. 1042.

6 Red River Broadcasting Co., Inc. v. Federal Communications Commission, 69 App.D.C. 1, 6, 98 F.2d 282, 287, certiorari denied 305 U.S. 625, 59 S.Ct. 86, 83 L.Ed. 400, and cases there cited.

7 Brunswick Terminal Co. v. National Bank, 192 U.S. 386, 24 S.Ct. 314, 48 L.Ed. 491; Hamilton v. Offutt, 64 App.D.C. 385, 388, 78 F.2d 735, 738, certiorari denied 296 U.S. 592, 56 S.Ct. 121, 80 L.Ed. 419; Long v. Schutz, 26 Ariz. 432, 226 P. 529.

8 D.C.Code (1929) tit. 5, § 298.

9 Hamilton v. Offutt, 64 App.D.C. 385, 388, 78 F.2d 735, 738, certiorari denied, 296 U.S. 592, 56 S.Ct. 121, 80 L.Ed. 419.

10 Button v. O. S. Stapley Co., 40 Ariz. 79, 9 P.2d 1010.

11 63 App.D.C. 116, 118, 70 F.2d 282, 284, certiorari denied, 292 U.S. 649, 54 S.Ct. 859, 78 L.Ed. 1499: “The liability here imposed by the Constitution of Arizona, and included in the articles of incorporation, created a contract on the part of the shareholders which followed them wherever they might go, and, in the event of the bank’s insolvency, made them liable to respond at the instance of a receiver lawfully appointed at the place whore the business was done, as completely and as fully as if the appointment had been made in Arizona. See Thomas v. Matthiessen, 232 U.S. 221, 34 S.Ct. 312, 58 L.Ed. 577.”

12 Grout v. First Nat. Bank, 48 Colo. 557, 562-563, 111 P. 556, 558, 559, 21 Ann.Cas. 418; King v. Pomeroy, 8 Cir., 121 F. 287; Leidigh-Dalton Lumber Co. v. Houck, 138 La. 159, 70 So. 72; Chicago Title & Trust Co. v. Central Trust Co., 312 Ill. 396, 144 N.E. 165.

13 Bergh v. Security Sav. Bank, 122 Wis. 514, 100 N.W. 831; In re Marathon Sav. Bank v. Marathon Sav. Bank, 198 Iowa 692, 693, 694, 196 N.W. 729, 730, 200 N.W. 199: “Preliminary to the disposition of the first point on this appeal, it may be stated that on the 22d day of April, 1921, W. W. Bennett, cashier of the Marathon Savings Bank, E. B. Wells, its president, A. L. Whitney, its attorney, and one or two other persons, prepared and signed a petition in equity for the appointment of a receiver for the bank. This action was entitled, ‘W. W. Bennett v. Marathon Savings Bank of Marathon, a corporation.’ Due and timely notice of the hearing was given, and subsequently A. L. Whitney was duly appointed as receiver and qualified. Whatever power he has exercised or claimed is by virtue of his appointment in the receivership proceedings predicated on chapter 32 of title 18 of the Code. No party to this action can now be heard to question his standing as such receiver or the jurisdiction of the court in appointment of him. Section 1877 of the Code, in force and effect at the time of the appointment of the instant receiver, is a permissive statute, and provided that the auditor of state may, with the assent of the Attorney General, apply to the courts for the appointment of a receiver of a hank. It therefore results that the status or acts of the receiver in this case cannot now bo impeached.” Grout v. First Nat. Bank, 48 Colo. 557, 111 P. 556, 21 Ann.Cas. 418.

14 Kibble v. Morris, 101 Mont. 308, 314, 53 P.2d 1150, 1152, citing 12 U.S.C.A. §§ 93, 191, 192.

15 Ariz.Rev.Oode (1928) § 592: “Voluntary dissolution. Any corporation having discharged its obligations may bo dissolved by a majority vote of the outstanding shares of stock. At least thirty days’ notice in writing of such proposed dissolution shall be given the stockholders of such corporation. The resolution of dissolution shall state that the corporation has no outstanding indebtedness, that the prescribed notice for the meeting was given, and that a majority of the outstanding shares of stock have voted in favor of dissolution, or consented in writing thereto. Upon the filing of a copy of such resolution, certified by the president and the secretary, in the office of the corporation commission the corporation shall cease to exist, except as to creditors.”

16 Ariz.Rev.Code (1928) § 590: “Term of existence; renewal. Corporations may be formed to endure for twenty-five years, but may bo renewed from time to time, for a period of not exceeding twenty-five years, when three-fourths of the votes cast at any stockholders’ meeting, duly called and held for that purpose, shall be in favor of such renewal.”

§ 594: “May wind up business. Corporations whose charters have expired, or which have been dissolved by the voluntary act of the stockholders, may continue to act for the purpose of winding up their affairs.”

17 Ariz.Rev.Code (1928) § 257: “Changing state bank to national bank. Any bank organized under this chapter may reorganize under the laws of the United States as a national bank. As soon as such bank has obtained the certificate from the comptroller of the currency authorizing it to commence business under the United States banking law, such reorganized bank shall take and hold all of the assets, real and personal, of such bank, subject to all liabilities existing against such bank organized under this chapter at the date of such reorganization, and shall immediately notify the supei’intendent of such reorganization and transfer.”

18 See Ariz.Rev.Code (1928) § 261.

19 Guaranty Trust Co. v. United States, 304 U.S. 126, 136, 58 S.Ct. 785, 790, 82 L.Ed. 1224: “The statute of limitations is a statute of repose, designed to protect the citizens from stale and vexatious claims, and to make an end to the possibility of litigation after the lapse of a reasonable time. It has long been regarded by this Court and by the courts of New York as a meritorious defense, in itself serving a public interest.” Bell v. Morrison, 1 Pet. 351, 360, 7 L.Ed. 174; Strong v. Andros, 34 App.D.C. 278, 283, 19 Ann.Cas. 101; Arizona Eastern R. Co. v. Old Dominion Copper Min. & Smelting Co., 14 Ariz. 209, 213, 127 P. 713, 715.

20 52 Ariz. 374, 384, 81 P.2d 86, 90:

“What then is the test of a banking business?

“[Here are set out a number of quotations from various authorities.] These definitions differ in their terms, but it will be found that there is at least one element appearing in each and every one of them — a bank is an institution which receives and pays out deposits. Indeed, paragraph 4850, R.S.A. (Civil Code) 1913, apparently recognizes this as an essential part of the banking business, for it says: ‘ * * * And all shares of stock of every bank, and banking company, corporation, and association, wheresoever and howsoever organized, engaged in the business of receiving deposits and of buying or selling exchange * * *.’ ”

21 Federal Land Bank v. Yuma County, 42 Ariz. 45, 22 P.2d 405.

22 Ariz.Iiev.Codo (1928) c. VIII, § 245, provides that for causes specified the superintendent of banks “may forthwith fake possession of the property and business of sueh bank and retain sueh possession until sueh bank shall resume business, or its affairs be finally liquidated as herein provided.” Among the causes arc impairment of capital, and a showing by examination or reports sueh that the Superintendent should “have reason to conclude that sueh bank is in an unsound or unsafe condition to transact business, or that it is unsafe and inexpedient for it to continue business, * The statute also lists several other causes which may occur entirely without reference to insolvency, namely, that the bank has violated its articles of incorpora lion or the law; is conducting its business in an unauthorized manner; refuses to submit its books and records to inspection of an examiner; or that any officer thereof refuses to be examined on oath concerning the bank’s affairs. § 244 authorizes the superintendent to bring an action for dissolution of the corporation for similar reasons. § 240 provides that on taking charge of the bank’s affairs, as provided in § 245, the superintendent shall be vested with sole and exclusive ownership and title of all its assets ; shall have power to conserve the assets and business; and “shall liquidate the affairs thereof as hereinafter provided.”

23 Act of June 30, 1876, 19 Stat. 63, 12 U.S.C.A. § 191; D.O.Oode (1929) tit. 5, § 298; Washington Loan & Trust Co. v. Allman, 63 App.D.C. 116, 70 F.2d 282, certiorari denied 292 U.S. 649, 54 S.Ct. 859, 78 L.Ed. 1499. Cf. Harper v. Moran, 64 App.D.C. 210, 76 F.2d 980, certiorari denied 296 U.S. 592, 56 S.Ct. 104, 80 L.Ed. 419; Moran v. Harrison, 67 App.D.C. 237, 91 F.2d 310, 113 A.L.R. 505, certiorari denied 302 U.S. 740, 58 S.Ct. 142, 82 L.Ed. 572.

24 Ibid. Cf. Hamilton v. Bergling, 66 App.D.C. 83, 85 F.2d 249; Hamilton v. Offutt, 64 App.D.C. 385, 78 F.2d 735, certiorari denied 296 U.S. 592, 56 S.Ct. 121, 80 L.Ed. 419.