Konicke v. McFerson

THIS is an application for supersedeas to judgment rendered against the plaintiff in error upon his electing to stand on his demurrer to the complaint of defendant in error. The action was to recover a statutory assessment upon stock held by plaintiff in error in the insolvent North Denver Bank, and no relief was sought under the lien provisions hereinafter mentioned.

The sole contention made by the plaintiff in error is that the provisions of chapter 67, S. L. 1923, giving a lien upon the property of the stockholder of an insolvent bank, to secure the payment of his assessment, are unconstitutional, upon grounds which need not be here stated; that these provisions are inseparably connected with the provision of the same act defining the liability of a stockholder; and that therefore the whole act is void, and affords no basis for the action of defendant in error. Chapter 67 above cited is, however, by its express terms, an amendment of section 39 of the Banking Act of 1913, being section 2696, C. L. 1921, which latter section creates and defines the stockholder's liability in language identical with that of the amendment. If the amendment is unconstitutional, the original section is in force and sustains the action. The constitutional question presented is therefore not involved, and it follows that the court below was right in overruling the demurrer.

The application for supersedeas is denied and the judgment is affirmed.